« NLRB tightens up on "salts." | Main | $27.5 million settles law firm age discrimination suit »
NLRB's new rules for voluntary recognition bar
October 03, 2007 by Ross Runkel at LawMemo
The NLRB (3-2) has modified the recognition bar rules for card-based recognitions, whether or not the voluntary recognition is pursuant to a neutrality or card-check agreement.
Dana Corporation, 351 NLRB No. 28 (September 29, 2007)
In a nutshell:
"No election bar will be imposed after a card-based recognition 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. If a valid petition supported by 30 percent or more of the unit employees is filed within 45 days of the notice, the petition will be processed."
The Board majority said:
"Metaldyne Corporation and Dana Corporation (the Employers) independently entered into separate neutrality and card-check agreements with the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, AFL–CIO. Subsequently, the Employers recognized the Union upon a showing of majority support of the respective unit employees. Shortly after the Employers' recognition of the Union (22 days for the Metaldyne unit and 34 days for the Dana unit), employees in each unit filed a petition seeking a decertification election. The Metaldyne petitions were supported by over 50 percent of the unit employees, while the Dana petition was supported by over 35 percent of the unit employees. The Regional Director for Region 6 and the Regional Director for Region 8 dismissed the Metaldyne and Dana petitions, respectively, based on an application of the Board's recognition-bar doctrine. According to this doctrine, an employer's voluntary recognition of a union, in good faith and based on a demonstrated majority status, immediately bars an election petition filed by an employee or a rival union for a reasonable period of time. A collective-bargaining agreement executed during this insulated period generally bars Board elections for up to 3 years of the new contract's term."The Petitioners filed timely requests for review of the Regional Directors' dismissals. Through their petitions, the employees sought a change in Board law in order to permit them to express their views, either for or against unionization, in a decertification election. The Board granted review to re-examine its recognition-bar doctrine.
"Our inquiry here requires us to strike the proper balance between two important but often competing interests under the National Labor Relations Act: 'protecting employee freedom of choice on the one hand, and promoting stability of bargaining relationships on the other.' It is a well-recognized judicial doctrine that 'the Board should be left free to utilize its administrative expertise in striking the proper balance.'] In striking that balance here, we find that the immediate post-recognition imposition of an election bar does not give sufficient weight to the protection of the statutory rights of affected employees to exercise their choice on collective-bargaining representation through the preferred method of a Board-conducted election.
"In order to achieve a 'finer balance' of interests that better protects employees' free choice, we herein modify the Board's recognition-bar doctrine and hold that no election bar will be imposed after a card-based recognition 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. If a valid petition supported by 30 percent or more of the unit employees is filed within 45 days of the notice, the petition will be processed. The requisite showing of interest in support of a petition may include employee signatures obtained before as well as after the recognition. These principles will govern regardless of whether a card-check and/or neutrality agreement preceded the union's recognition.
"Modifications of the recognition bar cannot be fully effective without also addressing the election-bar status of contracts executed within the 45-day notice period, or contracts executed without employees having been given the newly-required notice of voluntary recognition. Consequently, we make parallel modifications to current contract-bar rules as well such that a 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 45 days have passed without a valid petition being filed.
"The Board's usual practice is to apply a change in law retroactively, including in the case in which the change is announced. However, we find that an exception is warranted here to avoid inequitable disruption of bargaining relationships established on the basis of the former voluntary recognition-bar doctrine. We therefore apply the recognition-bar modifications adopted herein prospectively only. Accordingly, we affirm the Regional Directors' administrative dismissals of the petitions before us under extant law."
|
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
|
