• NLRB Undercuts Congressional Efforts to Mandate Union Recognition Without an Election
  • October 29, 2007 | Author: John W. Polley
  • Law Firm: Faegre & Benson LLP - Minneapolis Office
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    In Dana Corporation, 351 NLRB No. 28 (Sept. 29, 2007), the NLRB ruled that an employer's recognition of a union does not prevent its employees from petitioning for a decertification election unless certain conditions are first met. This case overrules decades of precedent. More importantly, however, it protects the right of employees to a secret ballot election in the event a Democratic Congress ever passes the Employee Free Choice Act.

    On the heels of the two-day national strike against General Motors, the national organizing director for the AFL-CIO insisted that his organization would keep fighting for enactment of the Employee Free Choice Act. EFCA, which died in the U.S. Senate this past June only when its supporters failed to get the 60 votes needed to close debate, would require an employer to recognize and bargain with a union that obtained signed authorization cards from a majority of the employer’s employees. Contrary to current law, the employer would have no right to insist upon a secret ballot election, and employees would lose the right to vote in private. Unions want this legislation badly, and each of the leading Democratic candidates for President supports it. The House passed the bill in March on a vote of 241 to 185.

    Perhaps anticipating that EFCA will be resurrected after the November 2008 election, the National Labor Relations Board issued its landmark decision in Dana Corporation. This decision explicitly mandates notice to employees of their right to petition for a decertification election whenever their employer has recognized a union without an election having been conducted. If EFCA becomes law, this will provide some protection to employers and employees.

    Under current law, an employer may recognize a union based on the union producing signed authorization cards from a majority of the employer’s employees. Alternatively, the employer may insist that the union petition the NLRB for a secret ballot election. Prior to Dana Corporation, if the employer did voluntarily recognize the union, the recognition “barred” an election for a reasonable period of time in order to afford the employer and the union an opportunity to bargain. During this “insulated period” the union enjoyed an irrebuttable presumption of majority status. Dana Corporation changed this election bar rule.

    In Dana Corporation, the sharply divided Board ruled 3 to 2 that when a union has been recognized on the basis of authorization cards and without an election:

      No election bar will be imposed …unless: (1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition.

     

    The Board held that an employer must “promptly” notify the NLRB’s Regional Office in writing that recognition was granted without an election and must provide the Regional Office with a copy of the written grant of recognition. The Board also stated that the employer’s grant of recognition to the union “must be in writing, shall describe the unit [that is, the job classifications that the union will be representing], and shall set forth the date of recognition.” Upon receipt of the notice and grant of recognition, the Regional Office will then issue an official NLRB notice that the employer must post conspicuously for 45 days. The notice, which the Board’s General Counsel has yet to create, should, according to the Board, clearly state that:

      (1) the employer (on date) has recognized the union as the employees’ exclusive bargaining representative based on evidence indicating that a majority of employees in the described bargaining unit desire its representation; (2) all employees, including those who previously signed cards in support of the recognized union, have the Section 7 right to be represented by a union of their choice or by no union at all; (3) within 45 days from the date of this notice, a decertification petition supported by 30 percent or more of the unit employees may be filed with the National Labor Relations Board for a secret-ballot election to determine whether or not the unit employees wish to be represented by the union, or 30 percent or more of the unit employees can support another union’s filing of a petition to represent them; (4) any properly supported petition filed within the 45-day period will be processed according to the Board’s normal procedures; and (5) if no petition is filed within 45 days from the date of this notice, then the recognized union’s status as the unit employees’ exclusive majority bargaining representative will not be subject to challenge for a reasonable period of time following the expiration of the 45-day window period, to permit the union and the employer an opportunity to negotiate a collective bargaining agreement.

     

    Presumably, the notice ultimately created by the NLRB’s General Counsel will also include a description of the job classifications covered by the recognition.

    This case overrules the precedent that had “insulated” a recognized union from challenge by employees who felt that their support had been coerced or otherwise obtained in a less than straightforward manner. Under prior law, the “recognition bar” to the filing of a decertification petition could extend to nearly a year and, if the recognized union signed a collective bargaining agreement during the insulated period, the new contract would bar any election for up to three years under the Board’s “contract bar” rule. The theory behind insulating a recognized union from challenge was to promote stability in collective bargaining relationships. In practice, however, it often meant that employees found it difficult to oust unions whose majority status was obtained at the outset by deft salesmanship, artful connivance, peer pressure, and even implied threats. In Dana Corporation, the Board acknowledged some of the flaws inherent in authorization cards, stating:

      There is good reason to question whether card signings … accurately reflect employees’ true choice concerning union representation. “Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back, since signing commits the worker to nothing (except that if enough workers sign, the employer may decide to recognize the union without an election).”

     

    Dana Corporation now holds that the union is not insulated from challenge, at least for the 45-day window period, and that the employer must post the notice telling affected employees of their right to decertify the union. Dana Corporation also holds that contracts signed after recognition will not bar a decertification petition unless the employer has posted the notice and the 45-day posting period has expired without a decertification petition having been filed. This rule applies to contracts executed during the 45-day window period, as well as those executed after the 45-day period has expired. Thus, quickie “sweetheart” contracts that are sometimes negotiated prior to formal recognition (and arguably in violation of section 8(a)(2) of the National Labor Relations Act) will no longer bar an election petition unless the notice is posted and the posting period expires. If the deal is too favorable to the employer or gives away things that some employees cherish, employees will now have a short period of time within which to challenge the right of the union to speak for them.

    The NLRB majority did not specifically mention EFCA, but it did nod in that direction, stating that its decision recognized that “the freedom of choice guaranteed employees by Section 7 is better realized by a secret election than a card check. ‘[S]ecret elections are generally the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support.’”

    If Democrats take control of the White House and can get 60 votes in the Senate after the November 2008 elections, Dana Corporation may be the only hope that an employer has that its employees will get to vote in a secret ballot election when a union tries to organize its employees. An effort in Congress to overturn the holding in Dana Corporation also seems likely.

    The Faegre & Benson Employment practice has more than 50 attorneys working exclusively to provide employers with practical, prompt and integrated solutions to difficult legal issues. The employment practice comprises various service teams focused on substantive areas such as best practices, employee benefits, employment litigation, executive compensation, immigration and global employee mobility, international employment law and benefits, labor law, and development and enforcement of non-competition and non-disclosure agreements.