Bars to Decertification and Rival Union Petitions Lifted Following Voluntary, Card Check Recognition

October 13, 2007 by Beeson Tayer & Bodine

In Dana Corp., 351 NLRB No. 28 (September 29, 2007), the National Labor Relations Board, in a 3-2 decision, modified its recognition- bar doctrine, and held that an employer’s voluntary recognition of a labor organization does not bar a decertification or rival union petition that is filed within 45 days of the notice of recognition.

Under its former policy, established in Keller Plastics (1966), 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. The Board had reasoned that labor-relations stability was promoted by a rule under which a voluntarily recognized union was insulated from challenge to its status while negotiating for a first collective-bargaining agreement.

In Dana, the Republican Board majority concluded that the “uncertainty” surrounding voluntary recognition based on an authorization card majority, as opposed to union certification after a Board election, justifies delaying the election bar for a 45-day period during which an employee or rival union may file a petition.

The newly announced rule includes the following:

• In order to serve as a bar, “the recognition itself shall be in writing, shall describe the unit, and shall set forth the date of recognition.”
• After recognition, “the employer and/or the union must promptly notify the Regional Office of the Board, in writing, of the grant of voluntary recognition.” The notice must include a copy of the written recognition described above.
• The Regional Office will then provide a notice to the employer that must “be posted in conspicuous places at the workplace” for a period of 45 days.
• The notice will include the following elements:
• “the employer (on date) has recognized the union as the employees’ exclusive bargaining representative based on evidence indicating that a majority of employees in a described bargaining unit desire its representation,”
• “all employees, including those who previously signed cards in support of the recognized union, have the Section 7 right to be represented by a union of their choice or by no union at all,”
• “within 45 days from the date of this notice, a decertification petition supported by 30 percent or more of the unit employees may be filed with the National Labor Relations Board for a secretballot election to determine whether or not the unit employees 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,”
• “if no petition is filed within 45 days from the date of this notice, then the recognized union’s status as the unit employees’ exclusive majority bargaining representative will not be subject to challenge for a reasonable period of time following the expiration of the 45-day window period, to permit the union and the employer an opportunity to negotiate a collectivebargaining agreement.”
• A decertification or representation petition filed during the newly created 45- day window period “may include employee signatures obtained before as well as after the recognition.”
• The contract bar rule is similarly modified so that a contract reached before the end of the 45-day window period will not serve to bar a petition.
• The employer’s duty to bargain still “attaches immediately” upon recognition.
• Even if a petition is filed, the new rules “will not require or permit the employer to withdraw from bargaining or from executing a contract with the incumbent union.”
• The new rules announced in the decision only apply prospectively, and will not apply retroactively to recognition that predates the date of the decision.

With these new rules, in order to obtain protection from decertification petitions or petitions filed by rival unions, any union that obtains voluntary recognition after September 29, 2007, must immediately notify the NLRB, and the employer granting recognition must post the NLRB’s notice to employees; it is only after this notice has been posted for 45 days that the union will enjoy any protection from a petition seeking to oust the union.

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