Board Allows Dissenting Employees to Void Union Card Check

Unions operate as democracies. At least that’s what Congress had in mind back in 1935 when it enacted the National Labor Relations Act (NLRA). Under the law, unions have the right to organize potential members at a particular work site without interference from the employer; individual workers, in turn, have the right to approve or reject the union as a collective-bargaining agent, preferably through the ballot box. The National Labor Relations Board (NLRB) monitors the process and certifies the results. But with unions accounting for an ever smaller share of the U.S. work force, they have resorted to unorthodox methods to gain worker support, chief among them the card check.


Union Corruption Update several times recently explained in detail why card checks, though outwardly democratic and formally legal, often circumvent the wishes of workers not seeking representation. Under a card check, union organizers attempt to collect as many worker signatures as possible, and not necessarily at the workplace. The purpose is to present a show of massive support to the employer. And if the employer previously had been corralled by the union into signing a “neutrality agreement” to accept the results as binding, then the union has all the more incentive to do whatever it takes to get a majority of workers to sign. Even without such an agreement, if union organizers can reach the 75 percent mark, they usually are confident of victory in a secret-ballot election later on. The House of Representatives this past March passed by a 241-185 margin a bill to force employer recognition of any card-check vote generating support from more than 50 percent of all affected workers. The legislation, deceptively called the Employee Free Choice Act, would have undone more than 70 years of union democracy under the guise of promoting it; the measure stalled in the Senate. But there is a separate issue that’s been on the front burner for a number of years. And for now, the National Labor Relations Board has delivered the definitive word.


On September 29, the NLRB issued a ruling in its consolidated Dana Corp. and Metaldyne cases [Dana Corp., 351 NLRB No. 28 (2007)]. The board stated that non-joining workers, within certain bounds, have the right to negate the results of a successful union card check. In a 3-2 vote, the NLRB said dissenting workers may have up to 45 days to file a petition to decertify the results. Moreover, the employer must notify all employees of this window of opportunity. Additionally, the petition need acquire only 30 percent of all employees’ signatures. In a partial victory for organized labor, the ruling would not be retroactive to include any previous card checks, even the ones at issue before the board. 


The case originated in a pair of unrelated disputes. A majority of workers for Dana (Upper Sandusky, Ohio) and Metaldyne (St. Mary’s, Pa.) had signed cards favoring recognition of the United Auto Workers (UAW) as the sole bargaining agent at the respective auto-parts plants. In each case, the employer was committed to a neutrality agreement. But in each case, a sizable faction of workers didn’t like the result. Indeed, they sought to void the result with the intent of holding an eventual secret-ballot election. With the help of attorneys from the Springfield, Va.-based National Right to Work Legal Defense Foundation, these workers proceeded to file decertification petitions with NLRB Region 8 (Dana) and Region 6 (Metaldyne). The petitions, respectively, had won the support of 35 percent and 50-plus percent of affected workers; indeed, the latter figure suggests any number of workers had signed UAW authorization cards under duress.


The non-joining workers initially lost. The regional boards dismissed the petitions, basing their rulings on the “voluntary recognition bar rule.” The longstanding doctrine held that a union may avoid all employee challenges for a “reasonable period” – which may be up to one year. [Keller Plastics Eastern Inc., 157 NLRB No. 583 (1966)]. If union officials obtain a contract within that interval, a “contract bar” would deny employees for up to three years the chance to vote out the union. Right to Work attorneys appealed the ruling to the full NLRB in Washington, D.C., with various union, employer and public policy groups filing amicus briefs for one side or another. This time the dissenting workers won.


Organized labor and its supporters are outraged. For starters, there are the two Democrats on the NLRB. In their dissent, members Wilma Liebman and Dennis Walsh wrote: “Sadly, today’s decision will surely enhance the 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.” AFL-CIO President John Sweeney was even more heated. “This shameful decision reverses decades of precedent around voluntary recognition – what previous Board decisions have called ‘favored element of national labor policy,’” he said. “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.” And the International Brotherhood of Electrical Workers weighed in, too: “It’s time for the politicization of the NLRB to stop. The Board must return to its original intent of protecting workers’ basic freedoms rather than infringing upon them.”


The idea of NLRB trampling on worker rights is more than a little suspect, say the decision’s supporters. The three-person majority explained their position this way: “Card checks are less reliable because they lack secrecy and procedural safeguards…union card-solicitation campaigns have been accompanied by misinformation…workers sometimes sign union authorization cards…to get the person off their back.” Indeed, it is precisely because of their frequently undemocratic style that card checks have invited so much criticism from so many sources other than the unions. 

While the NLRB ruling is not retroactive, it does make all workers at a given worksite eligible to sign a decertification card, including those who later have second thoughts. Under NLRB’s well-established “dual card” doctrine, whenever an employee signs two documents indicating conflicting statements of support for a union, the documents cancel each other out [Parkwood Developmental Center Inc., 347 NLRB No. 95 (2006); Le Marquis Hotel, LLC 340 NLRB No. 64 (2003)]. The Dana decision isn’t fully satisfactory to either side – and is most unsatisfactory to the UAW and other unions – but in modifying the “recognition bar,” it has addressed legitimate concerns that card-check organizers have been browbeating reluctant workers to sign. (Associated Press, 10/2/07; National Right to Work Legal Defense Foundation, 10/2/07; AFL-CIO Weblog, 10/3/07; IBEW, 10/9/07; Littler, Mendelson, 10/07).