When employers voluntarily recognize a union, a “recognition bar” prohibits employees from challenging the union’s status as their representative for a “reasonable period” of time. This “reasonable period” begins on the date of the first bargaining meeting between the union and the employer and lasts for six to twelve months.
Americold Logistics LLC agreed to a card check campaign. If a majority of its employees signed union authorization cards, Americold would accept the union without a secret ballot election. A majority of employees signed cards, the parties executed a recognition agreement in June 2012, and negotiations between the union and company began about four months later.
The parties reached an agreement in June 2013, just over a year after executing the recognition agreement, but an employee filed a decertification petition before the union ratified the contract. The Regional Director processed the petition because it was filed more than a year after the parties executed the recognition agreement. However, the National Labor Relations Board ruled that the one-year period did not begin to run until the parties held their first bargaining meeting. More importantly, the Board also determined that a reasonable period had not passed because the parties were on the cusp of an agreement and any reasonable period must include time for the union to hold a ratification vote.
This ruling lengthened the “recognition bar” from a set one year to an amorphous “one year plus” time for the union to ratify a contract. This ruling assumes the membership would ratify the contract. But ratification votes are not automatic. Oftentimes the deal struck at the bargaining table is unacceptable to the union membership at large. If not ratified, would the decertification petition be processed? Would the parties be required to continue bargaining? At what point would the recognition bar expire? While changing the rules to favor unions is expected under the current NLRB, I hope that future changes answer more questions than they raise.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.