October 6, 2022

Volume XII, Number 279

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NLRB Upholds “Successor Bar Doctrine,” Citing Labor Market Volatility

On June 28, 2022, the National Labor Relations Board (“NLRB”) voted to uphold the so-called “successor bar doctrine” in Hospital Menonita de Guyama, Inc. This doctrine provides incumbent unions with 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 it can provide objective evidence that the union has lost majority support.

The majority opinion cited the increasing volume of mergers and acquisitions in the contemporary economic landscape as supporting the successor bar doctrine, finding that failing to retain incumbent unions in the wake of increasingly frequent changes in company ownership would increase volatility and litigation in the labor market.

The dissenting opinion proposed that the NLRB return to the pre-2011 approach to changes in company ownership, 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 bar would reduce labor 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.

Takeaways

The successor bar doctrine is hardly a bedrock principle of labor law but rather an area where the NLRB has gone back and forth on the rebuttable vs. irrebuttable presumption issue over the years. Despite this lack of stability, employers who acquire companies with a represented workforce should take care for the first six months post-acquisition to deal with any incumbent union as if it had proof of majority support.

© 2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 189
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About this Author

Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...

212.969.3507
Paul Salvatore, Proskauer, New York, Real Estate Lawyer, Construction
Partner

Paul Salvatore is a member of Proskauer’s Executive Committee and former co-chair of its global Labor & Employment Law Department, named by The American Lawyer as one of the top U.S. practices and recipient of the Chambers USA 2012 Award for Excellence. He is widely recognized as a leading U.S. labor and employment lawyer in such publications as Chambers (Band 1), US Legal 500 (Leading Lawyer) and Superlawyers. In 2010, The National Law Journal selected Paul as one of "The Decade's Most Influential Lawyers" – one of only...

212-969-3022
Law Clerk

Dixie Morrison is a law clerk in the Labor Department and a member of the Employment Litigation & Arbitration Group.

310-557-5616
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