NLRB Opens Door to Stealth Card Check Despite Becker’s Conflict of Interest

In placing radical union lawyer Craig Becker on the National Labor Relations Board (NLRB) via recess appointment this past March, President Obama may have unleashed a more potent weapon to advance organized labor’s interests than even he realized at the time. In a 3-2 decision on August 27, the board voted to review its ruling of three years ago, Dana Corporation [351 NLRB No. 28 (2007)], which granted dissenting workers the right to undo a successful (i.e., employer-recognized) union card check campaign. The board thus has given unions new ammunition for realizing its top priority of forcing, and not simply authorizing, employers to recognize majority-vote union card check campaigns under the guise of “employee choice.” A separate but related issue is why Becker was allowed to cast a vote at all, given his conflict of interest in the case.

Some background here is necessary. The Democrat-led Congress repeatedly has tried, so far unsuccessfully, to enact the Employee Free Choice Act, or EFCA. This legislation, whose roots go as far back as the late Seventies and which got a new lease on life in 2007 thanks most of all to Rep. George Miller, D-Calif., and the late Sen. Ted Kennedy, D-Mass., would require that private-sector employers recognize the results of a majority card check. In other words, EFCA stipulates that if union organizers obtain signatures on separate cards from more than 50 percent of affected workers at a nonunion work site indicating a willingness to join, the employer would have to recognize that union as the sole collective bargaining agent. While card checks always have been legal, they are decidedly a less democratic way of achieving worker representation than NLRB-supervised secret ballot elections. And they are becoming increasingly common, both to test the waters for an eventual election and to gain collective bargaining status in lieu of an election.

Unions have an inherent interest in boosting their ranks. And if they can convince nonunion workers to sign a card indicating a desire to join, it doesn’t matter much to them that their methods might rival those of the most brazen encyclopedia salesman. Time and again, union organizers have accosted undecided employees at workplaces and even homes in the quest for card signatures. That’s in the nature of things. Another reason for their enthusiasm is that card check campaigns in recent years have succeeded in securing union representation roughly 80 percent of the time; the success rate for secret ballot elections, by contrast, has been a little over 50 percent. And card checks have become the dominant mode of union campaigning. In 2004, for example, 375,000 workers acquired union representation via card check, whereas secret ballot elections generated only 73,000 new members. Dana hardly ended card checks; since that 2007 decision, unions have obtained recognition through card check in more than 1,100 instances.

At present, an employer can accept the results of a majority card check campaign as binding, but does not have to. But under the union-supported (and misnamed) Employee Free Choice Act, such recognition would be mandatory. Yet even if EFCA were to pass today and receive President Obama’s quick signature, dissenting nonunion workers would retain, for the time being, an ace in the hole: On September 29, 2007, the board, by 3-to-2, ruled in Dana Corp. – actually a consolidation of two unrelated cases, Dana Corp. and Metaldyne – that workers had the right to negate the results of successful United Auto Workers card check campaigns so long as the workers filed a petition no more than 45 days from the time bargaining unit employees had received notice of voluntary employer recognition.

This 45-day “decertification bar” acts as a countervailing force against card check campaigns that rely on aggressive or deceptive tactics. It effectively gives non-joiners the right to say “no” after a campaign. The NLRB in that case added that an employer must notify all employees of this opportunity, regardless of whether they signed a card. Moreover, it stated that a decertification petition need acquire only 30 percent of employee signatures. This decision, while not retroactive, broke with an older, longstanding decertification bar of a “reasonable period” of up to one year [Keller Plastics Eastern Inc. 157 NLRB No. 583 (1966)]. Until Dana, voluntary employer recognition ended the possibility of a subsequent election.

Organized labor, needing no coaxing, views the ruling as an abomination. Then-AFL-CIO President John Sweeney at the time stated: “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.” The International Brotherhood of Electrical Workers similarly inveighed: “It’s time for the politicization of NLRB to stop. The Board must return to its original intent of protecting workers’ basic freedoms rather than infringing upon them.”

This sort of moral grandstanding overlooks the fact that card check organizers have little concern for non-joining workers’ rights. Card checks, unlike secret ballots, aren’t about workplace democracy of the sort envisioned in the National Labor Relations Act of 1935. They involve approaching and even exceeding definitions of harassment. Put another way, card check organizers aren’t neutral parties like Census enumerators. Their job isn’t simply to collect data, but to induce every unconvinced employee to sign a card. And if a private-sector employer is bound by a preexisting neutrality agreement, there is very little the employer can do to stop hard-sell tactics. In recognizing as much, the NLRB majority of three years ago explained: “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.” Americans, for the most part, concur. Several years ago the Princeton, N.J.-based Opinion Research Corporation found that 75 percent of respondents viewed the secret ballot as a more democratic method than card checks for determining workplace unionization.

Following the rendering of Dana three years ago, the NLRB has received more than 1,100 requests for voluntary recognition notices. These resulted in 85 petitions being filed, which resulted in 54 NLRB-supervised elections. In 39 of the latter cases, the voluntarily recognized union prevailed; in the other 15, the nonunion dissenters prevailed. By this summer, the board believed the evidence was sufficient to warrant a review of Dana. The August 27 ruling was a consolidation of two ongoing cases, Rite Aid Store #6473 (No. 31-RD-1578) and Lamons Gasket Co. (No. 16-RD-1597). By a 3-2 margin along party lines, NLRB decided that a union and/or newly-unionized employer should have the right to seek restoration of the results of a card check undone by dissenting workers under the new decertification bar.

In voting to revisit the Dana case, the NLRB has signaled its intent to raise the decertification bar, in effect to create a soft version of the misnamed Employee Free Choice Act. While overturning the decision wouldn’t amount to a mandate for employer recognition, it would leave employees and employers alike at nonunion plants with less recourse to challenge the excesses of card check campaigns. What’s more, the NLRB ruling this August lays the groundwork not just for a reconsideration of the decertification bar, but also for the “successor bar,” which had been overruled early last decade in MV Transportation [337 NLRB 770 (2002)]. That latter doctrine stated that if a new employer succeeds an existing one, the union’s majority status can’t be challenged for a reasonable period, presumably to allow the new company and the union time to negotiate a contract. The MV Transportation ruling gave a union a presumption of majority status, but made clear it was a presumption reversible by the employer, employees or another union.

The August ruling in itself is troubling. Exacerbating the problem is that one of the NLRB members voting in the majority, Craig Becker, shouldn’t have voted at all. Becker, a former law professor, more recently had served as a lawyer for the Service Employees International Union and other labor organizations. Under pressure from the National Right to Work Legal Defense Foundation, he agreed to recuse himself from Dana Corp. because he previously had co-authored a brief on behalf of the UAW and the AFL-CIO in that case. Even that was a mild gesture in the face of rising conflict-of-interest concerns. Union officials, in fact, since September 2007 have challenged a whole line of related cases. “By announcing his weak recusal standards, Craig Becker has made a mockery of the much-touted Obama ethics pledge,” remarked Foundation President Mark Mix this past June. “He has pre-judged the secret ballot, and he will now decide a case that could take away from workers the limited ability to use the secret ballot to get rid of an unwanted union foisted on them by coercive card check schemes.” That was three months ago. Apparently, even a recusal from Dana Corp. proved too much for Becker to bear.

By political custom, the five-member National Labor Relations Board must contain at least two members from each major party. With the Obama administration, this means on a practical level that the board at full strength will have three Democrats and two Republicans. That’s the way it worked out for most of this summer, following a period of 27 months (prior to Becker’s appointment) of NLRB operating with just two members. The board now has four members: Democrats Wilma Liebman (chairwoman), Mark Pearce and Craig Becker, and Republican Brian Hayes – the other Republican, Peter Schaumber, vacated on August 27, the very day of the new ruling, due to term expiration. Once the obligatory second GOP slot is filled, Becker will represent the deciding vote in any number of cases whose circumstances would dictate his sitting on the sidelines. Action is likely only a matter of time. The grant of review in Dana, according to Akin Gump attorney Joshua Waxman, “signals a real likelihood of significant change to a number of precedents.” In the Obama administration, ethics tend to fall by the wayside if key Democratic Party constituencies, unions among them, stand to lose.


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