Generally, a union can become
employees' exclusive bargaining representative in one of two ways: a secret
ballot election following a presentation of signed cards by more than 30% of
the bargaining unit members, or a presentation of signed cards by more than
50%. An employer, however, does not have to recognize a union based solely on a
majority of signed cards, and can require a secret-ballot vote overseen by the
NLRB. Some card checks, however, are done by agreement whereby the employer
recognizes the union upon the showing of a card majority and/or the employer
remains neutral during the union's organizational campaign.
In Dana Corp.
[an enhanced version of this opinion is available to lexis.com
subscribers], decided in 2007, the NLRB established that employees always
have a right to a secret ballot election. The Board held that when an employer
voluntarily recognizes a union based on a card-check, the employer must post a
notice of the recognition and of employees' opportunity to file for an election
to decertify the union or in support of a rival union within 45 days of the
notice. If within that 45-day window 30% of the bargaining unit members produce
evidence that they support decertification, the NLRB will hold a secret ballot
election. The NLRB adopted this rule "to achieve a 'finer balance' of interests
that better protects employees' free choice."
Yesterday, however, in Lamons Gasket
Co. [pdf], the NLRB reversed Dana Corp. and did away with
post-card-check decertification elections.
In reaching its conclusion, the
majority relied upon statistical evidence of requests for Dana notices and
The Board argued that Dana is
unnecessary because employees successfully decertified the voluntarily recognized
union in only 1.2% of the total cases in which Dana notices were requested. I
look at the numbers differently. Dana is needed because 27% of cases in
which elections were held resulted in decertifications. It is intellectually
dishonest to draw conclusions from the 98.8% of cases in which no further
action was taken and which we know nothing about.
I can also offer anecdotal
evidence of the need for Dana. I was one of the successful Dana
elections. In my case, the employees presented a nearly-unanimous showing of
cards. After the Dana posting, 21 out of 33 employees signed a petition
for a decertification election. The entire unit voted, resulting in
decertification by a vote of 17-16. In other words, the card check did not
accurately represent the employees' free choice.
For this reason alone, Dana
is an important rule that is needed to ensure that employees always have the
opportunity to exercise and express their free choice about unionization
through a secret ballot election. If we can use a Dana election to ensure that
employees have the right to have their voices heard in a secret ballot
election, what's the harm?
Visit the Ohio Employer's Law Blog for more
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