Wednesday, September 15, 2010

Card check is dead … long live card check

download The NLRB is set to revisit its rules for secret ballot elections for voluntarily recognized unions. If it reverses course, it will administratively do that which Congress has been unable to do—make secret ballot elections that much harder to obtain. The process the NLRB is reconsidering—its 2007 decision in Dana Corp.—is needed to ensure that employees always have access to a secret ballot election to protect their free choice in deciding whether or not to be represented by a labor union. And, I have the anecdotal evidence to prove it. First, some background.

Generally, a union can become employees’ exclusive bargaining representative in one of two ways: a secret ballot election following a presentation of signed cards by more than 30% of the bargaining unit members, or a presentation of signed cards by more than 50%. An employer, however, does not have to recognize a union based solely on a majority of signed cards, and can require a secret-ballot vote overseen by the NLRB. Some card checks, however, are done by agreement whereby the employer recognizes the union upon the showing of a card majority and/or the employer remains neutral during the union’s organizational campaign (known as a “neutrality agreement”).

In Dana Corp., NLRB established that employees always have a right to a secret ballot election. The Board held that when an employer voluntarily recognizes a union based on a card-check, the employer must post a notice of the recognition and of employees’ opportunity to file for an election to decertify the union or in support of a rival union within 45 days of the notice. If within that 45-day window 30% of the bargaining unit members produce evidence that they support decertification, the NLRB will hold a secret ballot election. The NLRB adopted this rule “to achieve a ‘finer balance’ of interests that better protects employees’ free choice.”

Dana Corp. was decided at the height of the Bush-era, pro-management NLRB. Now, the Obama NLRB is considering overturning Dana, and going back to the prior rule that barred any election petitions for up to one year following a voluntary recognition. Following its decision in Rite Aid Store #6473 and Lamons Gasket Co., the NLRB issued a Notice and Invitation to File Briefs [pdf] on the following six issues:

  1. What has been their experience under Dana and what have other parties to voluntary recognition agreements experienced under Dana?
  2. In what ways has the application of Dana furthered or hindered employees’ choice of whether to be represented?
  3. In what ways has the application of Dana destabilized or furthered collective bargaining?
  4. What is the appropriate scope of application of the rule announced in Dana, specifically, should the rule apply in situations governed by the Board’s decision regarding after-acquired clauses in Kroger Co., 219 NLRB 388 (1975), or in mergers such as the one presented in Green-Wood Cemetery, 280 NLRB 1359 (1986)?
  5. Under what circumstances should substantial compliance be sufficient to satisfy the notice-posting requirements established in Dana?
  6. If the Board modifies or overrules Dana, should it do so retroactively or prospectively only?

I can provide an anecdotal answer to number one. Since the NLRB decided Dana Corp. in 2007, employers and unions have filed 1,111 requests for voluntary recognition (The NLRB has put together a spreadsheet summarizing all of these cases). Those requests resulted 85 election petitions, 15 of which the employees voted against the voluntarily recognized union. I was one of those 15 elections. The employees presented a nearly-unanimous showing of cards. After the Dana posting, 21 out of 33 employees signed a petition for a decertification election. All 33 employees voted, resulting in decertification by a vote of 17-16. In other words, the card check did not accurately represent the employees’ free choice. For this reason alone, Dana is an important rule that is needed to ensure that employees always have the opportunity to exercise and express their free choice through a secret ballot election.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or