The National Labor Relations Board finally issued decisions in two cases involving Dana Corporation and Metaldyne Corporation that had been pending for over three years.  They both raised the ideologically heated question of an employee’s right to challenge his or her employer’s decision to voluntarily recognize a union based on a “card check” rather than an NLRB-supervised secret ballot election.  “Card check” recognition is based on cards or petitions signed by a majority of the employees in a unit which, when presented to and authenticated by the employer, allow the employer to recognize the union as the collective bargaining representative of the entire unit -- even if 49 percent did not sign.

This organizing technique has often been criticized because employees may sign a card or petition out of ignorance, misinformation, or peer pressure (or even coercion) without the safeguards of an NLRB-supervised election that measures employees’ private sentiments at a specific moment in time.  Nevertheless, unions have in recent years favored this technique because of its efficiency compared to NLRB election proceedings, and the ease of gaining signatures compared to votes in a secret ballot election. 

The Board’s September 29 decision in the Dana and Metaldyne cases brings about a major land shift for voluntary union recognition.  The case was decided strictly along political lines by the Board’s five Members (three Republicans joined the majority opinion, two Democrats dissented).  The majority began by identifying the two “competing interests” under the National Labor Relations Act of “protecting employee freedom of choice on the one hand, and promoting stability of bargaining relationships on the other.”  In striking a “finer balance” of those interests “that better protects employees’ free choice,” the majority modified the Board’s decades-old “recognition bar” doctrine to hold that an election would not be barred following voluntary recognition unless:

• Employees have been formally notified of their right, for 45 days following the posting of the notice, to file a decertification petition or to support a rival union’s petition; and
• 45 days have elapsed following the notice without a petition being filed.

Under these new rules, the employer must notify the local NLRB Regional Office when it voluntarily recognizes a union.  The Regional Office will then send an official standardized NLRB Notice to the employer for a 45-day posting.  This Notice describes the employer’s recognition of the union in a particular unit, and explains to those employees their right to file a decertification petition or to support a rival union’s petition, for a period of 45 days.

If no petition is filed with the NLRB during the 45-day period following the Notice, the “recognition bar” doctrine will protect the new relationship for a reasonable period of time, and then for up to three years’ duration for a newly negotiated labor contract.  But if the Notice is not posted for the employees, there is no protection at all under either the recognition bar doctrine or the contract bar doctrine -- presumably indefinitely into the future.

Organized labor has decried these new rules as anti-union and politically motivated, and has added the Dana and Metaldyne cases to its long list of grievances against the NLRB that it has recently been publicizing.  Unions have also been pushing for political support for the “Employee Free Choice Act,” an oddly named bill now pending in Congress, which would make involuntary “card check” recognition the norm and render NLRB-supervised secret ballot elections obsolete.  The Employee Free Choice Act does not have adequate support in the Senate, and would surely face a veto from President Bush, but who knows what changes in the political landscape will occur in November 2008?  It was certainly no coincidence that the Board’s majority opinion repeatedly emphasized that the concept of “employee free choice” underpinning the NLRA is best served by secret ballot elections and not by “card check” organizing techniques.

In the meantime, any employer contemplating voluntary “card check” recognition of a union needs to be aware of the requirement that it notify the local NLRB Regional Office, which will open a file designated as a “VR” case.  A standardized Notice will be forwarded to the employer for a 45-day posting.  Because the Board’s decision was given prospective application only, the new rules apply only to voluntary recognition agreements post-dating September 29, 2007.

Theodore R. Opperwall