NLRB upholds ‘successor bar doctrine’, citing job market volatility

On June 28, 2022, the National Labor Relations Board (“NLRB”) voted to uphold the so-called “successor bar doctrine” in Menonita Hospital of Guyama, Inc. This doctrine grants incumbent unions an irrebuttable presumption of majority support for at least six months after a change in employer ownership. Incumbent unions enjoy this irrebuttable presumption even if, as in Hospital Menonita, the employer claims that it can provide objective evidence that the union has lost majority support.

The majority opinion cited the growing volume of mergers and acquisitions in the contemporary economic landscape as supporting the successor bar doctrine, believing that failure to keep unions in place following increasingly frequent changes in the ownership of companies would increase volatility and litigation in the labor market.

The dissenting opinion proposed that the NLRB revert to the pre-2011 approach to company ownership changes, in which the incumbent union had only a rebuttable presumption of majority support. The dissent also disagreed with the majority’s assertion that the successor ban would reduce workforce volatility, arguing instead that forcing employees who no longer support a union to remain represented by that union would result in more, not less, instability in labor relations.

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The successor bar doctrine is not a fundamental tenet of employment law, but rather an area in which the NLRB has back and forth on the issue of rebuttable or irrebuttable presumption over the years. Despite this lack of stability, employers acquiring businesses with a represented workforce should ensure, for the first six months following the acquisition, that they treat any existing unions as if they have evidence of support. majority.

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