In the long awaited Dana/Metaldyne decision, rendered September 29, 2007, the National Labor Relations Board ruled 3-2 that Board policy needed to be modified to protect employees' freedom of choice. The NLRB will implement the secret ballot election process when there has been voluntary recognition of a union based on a card check process, and the employees request a decertification of the union. In its decision, the NLRB recognized that the preferred method of determining employees' uncoerced desires is to allow secret ballot elections. To protect this right, elections will be required when employees file a petition for decertification within 45 days of formal notice that an employer and a union have entered into voluntary recognition status. This new procedure modifies the "Recognition Bar" doctrine which had prohibited elections after voluntary recognition based on a card check procedure.
In the 1990's, Morton Bahr, President of the Communications Workers of America (CWA), coined the term "Bargaining to Organize". He defined it as using the union's collective power to negotiate procedures that give unions a better opportunity to achieve organizing at non-union affiliated companies. This Bargaining to Organize strategy added an unprecedented 20,000 members to the CWA.
Since then other unions and employers have entered into various card check and neutrality pacts as part of their collective bargaining agreements. As a result, scores of employees have quietly joined the ranks of union represented employees with no secret ballot election permitted. However, not all employees were willing to be so easily led to union representation through the card check process. Instead, these employees asked the Board to allow them to reclaim their Section 7 rights to a secret ballot election by filing decertification petitions in 2003 and 2004. However, when employees at Dana Corporation and Metaldyne Corporation filed these decertification petitions for election following their employers' agreements to voluntarily recognize the union based on a card check procedure, the NLRB Regional Offices dismissed those petitions relying on the "Recognition Bar" doctrine. The employees who filed the petitions then appealed and the NLRB accepted review.
On September 29, 2007, the NLRB ruled 3-2 that elections provide the more reliable basis for determining employee desires and that, if employees wish to have a secret ballot election, as demonstrated by a timely filed decertification petition, an NLRB conducted election was the more reliable indicator of employee free choice. The Board requested arguments from management, labor and employees about whether card check is potentially coercive. In the end, the Board concluded that petitions or card checks were a public declaration and that, as such, they are not as reliable an indicator of employee desires as the secret ballot process. By limiting the time period involved for initiating an election petition, card check recognition will still be a valid procedure for union representation where employees do not want an election and allow for a "Recognition Bar" to attach when no election petition is timely filed
In order to facilitate this modification of Board processes, the NLRB set out a procedure that provides notice and a 45 day period after notification for employees to timely file a petition for decertification. The Board's rule is prospective in its application. Thus, following September 29, 2007, anytime there is a voluntary recognition between an employer and a union, one or both must notify the appropriate Regional Director. The Region will then send out an official notice for posting which advises employees of their right to file a petition for election (or decertification petition) to be supported by 30% or more signatures of employees in the unit. This petition, to be valid, must be filed within 45 days. Properly supported petitions will trigger a Board conducted election. If employees do not timely file a properly supported petition, the usual "Recognition Bar" will attach to the voluntary recognition.
The decision is especially important for its strong articulation of the public policy finding of employees' Section 7 rights to vote in a secret ballot process. That process is the hallmark of employee free choice