The National Labor Relations Board (NLRB) recently issued two much-anticipated decisions that will have an immediate impact on the landscape of labor relations. In the consolidated case of Dana Corp., 351 NLRB No. 28 (2007), two large corporations voluntarily recognized the United Auto Workers after the union presented the employers with authorization cards signed by a majority of the employees. Before bargaining commenced, employees at both companies filed decertification petitions. The board's regional offices dismissed the petitions, relying upon the board's "recognition bar" doctrine. Under this doctrine, the NLRB has held that when an employer voluntarily recognizes a union, an employee or rival union cannot file a decertification or election petition until after a reasonable period of time has passed.
In Dana Corp., the NLRB held the recognition bar would apply after a voluntary recognition only if:
a. employees are notified of the recognition and their rights to file a decertification petition or support a rival union's petition; and
b. 45 days have passed without the filing of a valid petition.
These procedures apply regardless of whether the recognition was preceded by a card check or neutrality agreement.
Further, the NLRB modified its previous "contract bar" doctrine in voluntary recognition cases, which prohibited decertification or rival petitions for up to three years until after a labor contract's effective dates. Under the new rule, such contracts will not bar petitions following voluntary recognition until after the 45-day notice period has passed.
The arguments supporting the board's decision included: (i) union solicitation of authorization cards is not as reliable as a board-certified election in gauging an employee's free choice because of the lack of privacy; (ii) the absence of any procedural controls; and (iii) the frequency of misinformation often associated with authorization cards. The board noted employee free choice is a fundamental premise of the law and modification of the doctrine is necessary to ensure voluntary recognition truly represents an employee's free choice.
On the same day Dana Corp. was released, the board issued Toering Electric Co., 351 NLRB No. 18 (2007), which considered the use of "salts," or union applicants who apply for jobs solely for the purposes of filing unfair labor practice charges. The board noted various building and construction trade unions conceived this strategy in the late 1990s as a method of eliminating the rapid increase in non-union contractors. The strategy was to file as many unfair labor practice charges as possible in the hopes of harassing employers with timely and costly litigation. Union members with no real interest in a job would apply for advertised openings, in part as a vehicle for filing alleged "discriminatory hiring" charges when they were not hired. The board's earlier decisions allowed "salts" to file charges if the prima facie elements were met, and placed the burden on the employer to prove that the applicant had no real interest in obtaining employment.
In Toering, the board concluded there must be "at least a rudimentary economic relationship, actual or anticipated, between employee and employer" to sustain a discriminatory hiring charge. The majority found no such economic relationship in the case of applicants who had no genuine desire to work for the employer. It placed upon the NLRB's general Counsel the burden of proving that the alleged discriminatee was genuinely interested in seeking an employment relationship to be qualified for protection under the law. If the general counsel cannot prove the applicant is genuinely interested, the unfair labor practice charge will be dismissed.
The foregoing decisions are welcome news for employers. Between the new method of seeking voluntary recognition, and the older method of using "salts," unions have been actively seeking to unionize employers in the face of a decades-long trend away from union membership.