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LABOR & EMPLOYMENT LAW — 10/08/07

Divided NLRB allows 45-day window to challenge voluntary recognition

In a self-described "significant departure from pre-existing law," a divided National Labor Relations Board modified the recognition-bar doctrine to allow employees to file a decertification petition, or to support a rival union's filing of a decertification petition, for a period of 45 days following notification of card-based recognition. If a petition supported by 30 percent or more of bargaining unit employees is filed within the 45-day period, the petition will now be processed. The 3-2 decision overturns precedent applied in cases since 1966. However, the Board's ruling applies prospectively only.

Contract-bar modification. In addition, the Board announced that any collective bargaining agreement executed on or after the date of voluntary recognition will not bar a decertification or rival union petition unless notice of recognition has been given and no valid petition is filed during the 45-day period following the notice.

Official notice. The employer must post in conspicuous places an official notice supplied by the Regional Office of the Board informing employees of the recognition and their right to file a decertification petition supported by 30 percent or more of the unit employees within 45 days from the date of the notice for a secret ballot election to determine whether they 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.

Timing of signatures. The required showing of interest in support of the petition may include employee signatures obtained before or after recognition.

With or without neutrality agreement. The change applies regardless of whether a card-check and/or neutrality agreement preceded the union's recognition.

No change to "reasonable period" standard. If no petition is received within the 45-day period, the voluntary recognition bar will apply, which will bar the filing of election petitions for a reasonable time following voluntary recognition.

"We continue to support voluntary recognition, and thereby encourage the stability of collective-bargaining relationships established on that basis, by continuing to apply the recognition bar. We simply modify that bar to provide greater protection for employee free choice," Chairman Battista and Members Schaumber and Kirsanow, comprising the majority, said in the much-anticipated decision in two cases consolidated for review in 2004. (Dana Corp, 351 NLRB No 28, September 29, 2007).

On the contrary, dissenting Members Liebman and Walsh, responded. The majority's decision neither promotes employee free choice nor stable bargaining relationships. The majority "subjects the will of the majority to that of a 30 percent minority, and destabilizes nascent bargaining relationships."

Background. In both cases, the employers, Dana Corp. and Metaldyne Corp., entered into neutrality and card-check agreements with the United Auto Workers. Following a card check by a neutral third party, the employers recognized the union. In both cases, decertification petitions filed just weeks after recognition were dismissed by the Regional Directors who found, applying the recognition-bar doctrine, that bargaining had not continued for a reasonable period of time.

The increased use of and the varying contexts in which recognition agreements are reached, the "superiority" of Board-supervised secret ballot elections, and the importance of employees' Section 7 rights all warranted renewed scrutiny of the recognition-bar doctrine under Keller Plastics Eastern, Inc, 1966 CCH NLRB ¶20,259, the Board said when it agreed to review the dismissals in 2004 and invited interested parties to file amicus briefs. Dana Corp and Metaldyne Corp, 2004-05 CCH NLRB ¶16,693.

Preference for Board elections. In support of its decision, the majority cited susceptibility to group pressure due to the public nature of card signings, misinformation or lack of information about employees' representational options, the protracted period of time involved in obtaining signatures, and the lack of safeguards to guard against improper electioneering tactics, all of which accompany the card check authorization process.

Greater uncertainty. The basic justifications for providing an insulated period to promote labor-relations stability during the infancy of a collective-bargaining relationship are well founded, the majority acknowledged, except that they do not warrant immediate imposition of an election bar following voluntary recognition. "The greater uncertainty surrounding the showing of majority support for a voluntarily recognized union, as opposed to a certified union, justifies delaying the election bar for a brief period during which the unit employees, having been informed of the voluntary recognition window period for filing a petition with the Board, can debate among themselves whether a Board-conducted election is preferred."

Notice period and showing of support. The majority rejected the General Counsel's recommendation of a 30-day window period for filing election petitions. Thirty days is not long enough to permit employees to fully discuss their views and, if desired, to solicit support for decertification, particularly in the case of a large bargaining unit.

Nor was there any reason to vary the traditional showing-of-interest requirement, as the General Counsel had proposed in recommending that the showing of interest be signed by at least 50 percent of bargaining unit employees no later than 21 days after notification of recognition. Further restrictions beyond the 45-day filing period are unnecessary and unduly burdensome, the majority concluded.

A swipe to the knees. Although individual Board members have occasionally disagreed over the application of the recognition bar in particular cases, the dissent pointed out, in the 40 years since Keller Plastics no Board Member or court had challenged the bar itself "or espoused the theory that it would be improved by the 'fine tuning' perpetrated by the majority."

The decision to voluntarily recognize a union in order to avoid the time, expense, and disruption of an election is critically undermined by the majority's modifications. There is little incentive to voluntarily recognize the union if the decision is subject to second-guessing through a decertification petition.

Furthermore, the new window period leaves the parties' bargaining relationship open to attack by a minority of employees at its most vulnerable time. In reality, the status of the union could remain uncertain for more than 3 months, or longer if election objections are filed, the dissenters observed.

In response, the majority expressed its doubt that the dissent's "dire consequences" would prove true. The 45-day window does not encourage, much less guarantee, the filing of a petition. "That is a matter left to employees, and an employer and union are both free to during the window period to express their noncoercive views about the perceived benefits of a collective-bargaining relationship."

Unaddressed issues. Apparently the majority also felt it important to note that its decision does not question the legality of voluntary recognition agreements based on a showing of majority support. Nor does it address the legality of card-check and/or neutrality agreements. (Another case involving Dana Corp and the UAW in which the Board will decide whether a "letter of agreement" that applied to 300 employees at an unorganized facility owned by Dana constituted an unlawful pre-recognition agreement is still pending. Although the ALJ dismissed the complaint on procedural grounds, he concluded that the evidence failed to establish that Dana had recognized the UAW at the facility. Dana Corp, JD-24-05. In March 2006, the Board invited amicus briefs in that case.)

Furthermore, the decision does not address circumstances in which employers may file post-recognition petitions or unilaterally withdraw recognition from a union. Finally, the decision leaves untouched the "reasonable period" standard for determining the length of a voluntary recognition bar period.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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