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The National Labor Relations Board modified its recognition and contract bar doctrines by holding that an employer’s voluntary recognition of a labor union does not bar a decertification or a rival union petition filed within 45 days of the notice of recognition. Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007). One of the more contentious labor relations issues is the increased use of the “card check” and “neutrality” agreements, which are often part of a labor union’s corporate campaign against a targeted employer. “Card check” refers to recognition of a union upon a showing of a card majority. “Neutrality” refers to an employer remaining neutral during a union’s organizing campaign. A union’s ultimate goal is to obtain voluntary recognition from the employer without the necessity of a secret election. Prior policy was in effect for more than 40 years Under the board’s former policy, an employer’s voluntary recognition of a union based on a showing of the union’s majority status barred a decertification petition filed by employees or a rival union’s petition for a “reasonable period of time,” even when the majority showing did not result from a board-conducted election. The board had reasoned that labor relations stability was promoted by insulating a voluntarily recognized union from challenge to its status while negotiating for a first collective bargaining agreement. See Keller Plastics, 157 NLRB 583 (1966). However, both the board and courts have long recognized that employee freedom of choice is better realized by a secret election than a card check, and secret elections have been recognized by the U.S. Supreme Court as the “preferred” method of ascertaining whether a union has majority support. The decision at issue involved two employers: Metaldyne Corp. and Dana Corp. Both entered neutrality and card check agreements with labor unions, which began organizing drives and ultimately solicited authorization cards from a majority of employees in the agreed-upon bargaining units. After card checks by neutral third parties confirmed majority support, each employer voluntarily recognized the union. These voluntary recognitions occurred a few months after the neutrality and card-check agreements. However, only weeks after this voluntary recognition, employees in both units filed decertification petitions with the board. Metaldyne began negotiations thereafter and reached a final agreement, while Dana did not begin contract negotiations. The issue before the board was whether an employer’s voluntary recognition of a union based on a presumably valid majority showing � usually consisting of signed authorization cards � should bar a decertification or rival union election petition for some period of time thereafter. In Dana, the board majority (Chairman Robert J. Batista and members Peter C. Schaumber and Peter N. Kirsanow) concluded that although the justifications for providing an insulated period are sound, they do not warrant immediate imposition of an election bar following voluntary recognition. The board found that it had broadly applied the recognition bar and dismissed petitions in circumstances that raised “serious questions” of whether employee free choice was given adequate weight. In balancing the competing interests of protecting employee freedom of choice and promoting stability of bargaining relationships, the board found that the immediate post-recognition election bar gave insufficient weight to the right of affected employees to exercise their choice on collective bargaining representation through the preferred method of a board-conducted election. The board reasoned that the uncertainty surrounding voluntary recognition based on an authorization card majority, as opposed to union certification after a board election, justified delaying the election bar for a brief period during which employees can decide whether they prefer a board-conducted election. In this regard, the board recognized the greater reliability of the board elections and the numerous reasons that authorization cards are inferior to the election process, including: Unlike voting in private by secret ballot, card signings are public actions, susceptible to group pressure exercised at the moment of choice; union card-solicitation campaigns have been accompanied by misinformation or a lack of information about an employee’s representation options; a board election presents a clear picture of employee voter preference at a single moment, while card signings take place over a protracted period of time; and the board will invalidate elections affected by improper electioneering tactics, while there are no guarantees of comparable safeguards in the voluntary-recognition process. The board thus modified its recognition-bar doctrine to better protect employees’ free choice. Under the new policy, an employee or rival union may file a petition during a 45-day period following notice that a union has been voluntarily recognized. The petition will be processed if, like other petitions, it is supported by 30% of the bargaining unit. No election bar will be imposed after a card-based recognition unless 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 45 days pass from the date of notice without the filing of a valid petition. The board found that a 45-day notice period is appropriate because it is of sufficient length to permit affected employees to discuss fully their views concerning collective bargaining representation. The employer, the union or both must promptly notify the regional office of the NLRB, in writing, of the grant of voluntary recognition. The regional office will then prepare a formal notice setting forth the employer’s recognition of the union, the employees’ right to be represented by a union of their choice or none at all, the employees’ right to file a decertification petition within 45 days and the effect of the window period elapsing with no petition being filed. These principles will govern regardless of whether a card-check or neutrality agreement preceded the union’s recognition. The board also made parallel modifications to current contract-bar rules such that a collective bargaining agreement executed on or after the date of voluntary recognition will not be a bar to a decertification or rival union petition unless notice of recognition has been given and 45 days elapsed without a valid petition being filed. Thus, if the notice and window period requirements have not been met, no post-recognition contract will bar an election. But if both conditions are satisfied, the recognized union’s majority status will be irrebuttably presumed for a reasonable period to enable the parties to negotiate a collective bargaining agreement. The board will apply this modified procedure prospectively only. While its usual practice is to apply a change in law retroactively, including in the case in which the change is announced, the board found an exception warranted to avoid inequitable disruption of bargaining relationships established on the basis of the former voluntary recognition-bar doctrine. Accordingly, the board affirmed the administrative dismissal under extant law. In dissent, members Wilma B. Liebman and Dennis P. Walsh stated that there was no justification for departing from the longstanding, judicially approved procedure first announced in Keller Plastics. The dissent maintained that voluntary recognition is a favored element of national labor policy, but that the majority relegates it to disfavored status by allowing a minority of employees, the number needed to file a decertification petition, to disrupt the bargaining process just as it is getting started. This, the dissent contends, will discourage voluntary recognition. The potential effect of ‘Dana’ on labor relations Dana represents a significant departure from the board’s voluntary-recognition bar. During the 45-day window period, the newly established bargaining relationship will be subject to some degree of uncertainty about potential challenges to the union’s representative status. Supporters of the ruling contend that although the voluntary recognition has been an accepted method of establishing valid collective bargaining relationships, the board and courts have long recognized that NLRB elections provide a more reliable basis for determining whether employees desire union representation. The voluntary-recognition bar was properly re-evaluated because the recent growth of card-check/neutrality and voluntary-recognition agreements placed too much unchecked power in the hands of an interested and chosen “partner” union, threatened employees’ free choice and eliminated the board from the process. Unions and other supporters of the pre- Dana recognition-bar doctrine contend that this longstanding doctrine serves the statutory policy of encouraging collective bargaining and labor relations stability. The doctrine supports and encourages card-check voluntary recognition, which is undisputedly lawful. The availability of the NLRB provides adequate safeguards against coercive soliciting of employees and the recognition of minority unions. Further, elections are not necessarily superior to private voluntary-recognition procedures because of unequal party access during the election process, negative campaign tactics by employers, employer coercion and the substantial delay involved in resolving post-election objections and challenges. Whatever one’s opinion is regarding the desirability of these modifications, it seems apparent that Dana has limited the utility of labor unions relying on card checks and neutrality and voluntary-recognition agreements to bypass NLRB elections. Dana may also encourage unions to push even harder for the presence of the Employee Free Choice Act as a legislative means of strengthening the use of neutrality agreements and card-check recognition to organize employees and of reducing the perceived weaknesses of the NLRB’s election process. Kenneth R. Dolin is a partner in the labor and employment practice group of Chicago’s Seyfarth Shaw and is a fellow in The College of Labor & Employment Lawyers.

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