NLRB Ruling ‘Cuts Voluntary Recognition off at the Knees’

by James Parks, Oct 3, 2007

The Republican-dominated National Labor Relations Board is at it again. Instead of protecting workers’ freedom to join a union, the Bush-appointed members continue to take away workers’ rights. 

In a partisan vote, the board ruled Sept. 29 that if employers voluntarily recognize a union based on union authorization cards (also known as card-check), anti-union employees have a 45-day window to petition for an NLRB decertification election. The employer has to give employees notice of their 45-day window to petition for a decertification election.  Just 30 percent of the employees need to sign the petition even though more than 50 percent of employees have already chosen union representation by signing authorization cards.

In effect, this means 30 percent of employees can force an NLRB election, even if a card-check/neutrality agreement was reached before recognition, and even if a bargaining agreement has been reached in the 45-day period. Click here to read the NLRB decision. 

In a ringing dissent, NLRB members Wilma Liebman and Dennis Walsh said the decision “cuts voluntary recognition off at the knees.” 

Sadly, today’s decision will surely enhance already serious disenchantment with the [National Labor Relations] Act’s ability to protect the right of employees to engage in  collective bargaining. 

 The majority’s decision…subjects the will of the majority to that of a 30 percent minority.

 Today’s decision…undercuts the process of voluntary recognition as a legitimate mechanism for implementing employee free choice and promoting the practice of collective bargaining.  It does so at a critical time in the history of our act, when labor unions have increasingly turned away from the board’s election process—frustrated with its delays and the opportunities it provides for employer coercion—and have instead sought alternative mechanisms for establishing the right to represent employees. 

The case stems from an agreement by Dana Corp. and Metaldyne Corp. with the UAW not to interfere in workers’ efforts to form a union and to recognize the union if a majority of workers have signed union authorization cards. After the union was recognized, employees in each unit filed a petition seeking a decertification election.

The NLRB regional director dismissed the petitions based on the board’s “recognition-bar” doctrine that 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. In its ruling last week, the board removed any time limits on filing the decertification.

AFL-CIO President John Sweeney says:

At a time when America isn’t working the way it should for working people, the Bush labor board is pulling the rug out from under our nation’s middle class through such decisions which amount to a sea change in our nation’s labor laws.

This shameful decision reverses decades of precedent around voluntary recognition–what previous Board decisions have called “a favored element of national labor policy.” The NLRB has shown itself again to be little more than a political tool of right-wing Republicans in their continuing assault on America’s working families.

It’s time for the politicization at the NLRB to stop. The Board must return to its original intent of protecting workers’ basic freedoms rather than infringing upon them.

Working families are ensuring their lawmakers running for election in 2007 and 2008 understand the importance of backing the Employee Free Choice Act. One of the key provisions in the act would allow employees to choose to join a union by card-check or to hold an NLRB election. Now the decision rests with the employer.

This NLRB attack on card-check comes less than a month after the board upheld an employer’s withdrawal of recognition without an election. After employees at Shaw’s Supermarkets submitted slips signed by bargaining unit employees saying they no longer wanted the union to represent them, the board ruled that it was perfectly OK for the employer to simply withdraw recognition from the union without an election. 

When Liebman complained that Shaw’s should have waited for the election results, the board amazingly said the process takes too long.

In regard to the time that it can take to resolve a decertification election case, we note that, in many cases, blocking charges are filed and delay the election until the charges are resolved one way or another. And, even absent such charges, a union election loss can be contested by challenges and/or objections. 

Ironically, union members have been saying the same thing about the length of time it takes for an NLRB vote and that is one main reason workers support and use card-checks. 

The Dana/Metaldyne decision is just another in a series of bad decisions by the Republican-dominated NLRB. A year ago, in three cases, collectively known as the Oakwood cases after the lead case, Oakwood Healthcare Inc., the board reinterpreted the definition of “supervisor” in a way that greatly expanded the number and type of workers who can be classified as supervisors. The expanded definition applies to workers in every industry and means up to 8 million workers, including nurses, building trades workers, newspaper and television employees and others, may be classified as supervisors and barred from joining unions. 

The board also has denied graduate assistants and temporary agency workers the right to form unions. Check out the AFL-CIO BushWatch site for more examples of anti-union actions by the NLRB. 

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