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Bush's NLRB Legacy: #5 of 12
January 09, 2008 by Ross Runkel at LawMemo
Card-based recognitions must allow 45 day window for rival petitions. #5 in a series of 12 significant actions by the Bush Board.
Dana Corporation, 351 NLRB No. 28 (September 29, 2007) (3-2)
When a majority (more than half) of employees have signed cards authorizing a union to represent them, an employer has the option of either (a) recognizing the union based on the cards or (b) requiring that there be an NLRB-conducted secret ballot election. In this case, the employer voluntarily recognized the union.
The issue for the NLRB was how to set up a "recognition bar" that would bar any election proceedings for a reasonable period of time to allow the union and the employer time to negotiate a contract.
In Dana Corporation, the NLRB modified the recognition bar rules for card-based recognitions, whether or not the voluntary recognition is pursuant to a neutrality or card-check agreement. Board's modified recognition bar:
"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."
My view:
There are two "normal" ways for a union to become recognized: winning a secret ballot election, and being recognized voluntarily based on recognition cards. Board Members have for a long time disagreed about the extent to which each method actually furthers the statutory goal of "employee free choice."
The new rule in Dana Corp continues to allow card-based recognition, and continues to allow for a recognition bar, while also allowing a brief period of time during which there can be a challenge as to whether there really is majority support for the union.
The new rule is opposed by unions that do not want to go through a period of election campaigns, and who believe that recognition cards are trustworthy. The new rule is supported by employers who believe that recognition cards often are signed under pressure or by employees who haven't been exposed to any counter-arguments.
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