Tuesday, October 2, 2007

NLRB Cuts Back on Voluntary Election Bar

Nlrb_3

The NLRB's decision in the much-anticipated Dana Corp., 351 N.L.R.B. No. 28 (Sept. 29, 2007) case is out.  In this case, the Board reconsidered its approach to the voluntary recognition bar.  For forty years, pursuant to the Keller Plastics case, the Board had barred for a "reasonable time" (usually around 6 months) any attempt to decertify a union that had been voluntarily recognized by an employer.  In Dana Corp., the current Board (3-2) didn't completely eliminate the voluntary recognition bar with regard to employee- or rival union-initiated decertification petitions, but it came close.  Now, when a union is voluntarily recognized, whether or not a card-check or neutrality agreement existed,

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.

The majority stated that it wasn't questioning the legality of voluntary recognition; however, this case is one of a growing line of decisions in which the Board has repeatedly undermined and questioned the validity of such recognition.  The Board bases its decision on the need "to provide greater protection for employees’ statutory right of free choice and to give proper effect to the court- and Board-recognized statutory preference for resolving questions concerning representation through a Board secret-ballot election."

Members Liebman and Walsh vehemently disagree with the majority's reasoning, as stated in the opening of their dissent:

Sadly, today’s decision will surely enhance already serious disenchantment with the Act’s ability to protect the right of employees to engage in collective bargaining. As the majority recognizes, the Board’s task in these cases is to balance the Act’s twin interests in promoting stable bargaining relationships and employee free choice. But the appropriate balance was struck 40 years ago, in Keller Plastics, and nothing in the majority's decision justifies its radical departure from that well-settled, judicially approved precedent.  The voluntary recognition bar, as consistently applied for the past four decades, promotes both interests: it honors the free choice already exercised by a majority of unit employees, while promoting stable bargaining relationships. By contrast, the majority's decision subverts both interests: it subjects the will of the majority to that of a 30 percent minority, and destabilizes nascent bargaining relationships. In addition, the majority's view fails to give sufficient weight to the role of voluntary recognition in national labor policy and to the effect of existing unfair labor practice sanctions to remedy the problems the majority claims to see.

Among the dissent's many objections to the majority's reasoning is that the window period is "a “Catch 22” for the union. [T]he knowledge that an election petition may be filed gives the employer little incentive to devote time and attention to bargaining during the first 45 days following recognition. Yet, if unit employees perceive that nothing is being accomplished in that initial bargaining, it stands to reason that they may be more likely to sign an election petition and even, ultimately, to vote against the union—even if they previously had supported it." As the dissent notes, this pressure on the union to produce results against a recalcitrant employer, while having to fear a quick decert petition is what the recognition bar is supposed to avoid.

I support the idea of maximizing employee free choice and the advantages of a free and fair election.  However, I find the Board's use of these ideas to be disingenuous.  The current majority has done nothing to rectify the obvious imbalance that exists in Board-run elections; to the contrary, they seem intent on minimizing employee choice whenever it is to the employers' advantage.  There is a lot of room for real NLRA reform in this area--reform that would truly maximize employees ability to freely choose to unionize and to refuse to unionize.  But, at this point, the battle is little more than each side trying to maximize whatever advantage they can muster.

Also of note is the dissent's quotation of James Budney's (Ohio State) article, Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms, 90 Iowa L. Rev. 819 (2005).

-JH

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Tracked on Oct 2, 2007 9:03:19 PM

Comments

I disagree with your characterization of this matter. Perhaps we should have a debate or serious discussion on how to improve the Section 9(a) designation and selection process and the Section 9(c) election process. Presumably we all wish our fellow citizens to select freely and make an informed choice.

Posted by: John Raudabaugh | Oct 3, 2007 7:11:43 PM

I don't think we're that far apart. If the election process wasn't so tilted in employers' favor (and there were more significant penalties for ULPs), I would be much more sympathetic to the stress on Board-run elections. That's not the case now, however, and reducing the voluntary recognition bar only skews the recognition process farther. As I noted in my post and you suggest in your response, I think there is a wide range of comprehensive reforms in this area that would be far superior--particularly in providing employees with a truly free and informed choice--to the current law. I would love a serious debate on what those reforms should entail, but I just don't think it's going to happen anytime soon.

Posted by: Jeff | Oct 3, 2007 9:52:32 PM

Perhaps those of us interested in this matter could facilitate a weekend meeting to have open discussion and provide suggestions to appropriate legislative committees.

Posted by: John Raudabaugh | Oct 4, 2007 6:28:21 AM

As a matter of policy, how one views this case likely depends in large part on how one views the NLRB election process. If one views it as similar to, say, a local school board election, then one could reasonably conclude, "what's the big deal about double-checking a card-check majority if 30% of the employees want to do so?"

But if one views the NLRB election process as deeply flawed, tilted to greatly favor any employer who wants to play some well-established games, then this decision looks like a radical departure designed to undercut one of the only successful union tactics in the recognition process in recent years.

Count me in the second camp. Yes, if we could change rules during the election process to increase penalties (including injunctive relief) for employer ULPs, alter some access rules, and maybe put some teeth in the duty to bargain for first contracts, then this decision wouldn't be as important. But this decision was made in the absence of any such reforms, and in the context of what union elections look like now.

Along these lines, I think the dissent makes a nice point that the majority seems to think that ULP remedies would be ineffective for dissenting employees filing 8(a)(2) or 8(b)(1) charges (if they are worried that the employer is recognizing a union that lacks majority support of if they felt the card-majority was a product of coercion). Yet the majority seems insensitive to the many, documented problems with ULP remedies for anti-union discrimination in election campaigns.

Finally, as a statutory matter, 9(a) speaks of employees "designating or selecting" a union. While I understand that recognition bars are not in the statute, neither is any requirement for an election.

Posted by: Joseph Slater | Oct 8, 2007 8:09:08 AM

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