Over the past several years, many employers have entered into neutrality/card check agreements so the union will not target them in a corporate smear campaign. Such agreements typically allow union access to employees to solicit them to sign union authorization cards. When a majority of employees has signed cards, the union can ask the employer to recognize the union. Under a neutrality/card check agreement, the employer typically must do so. Even in the absence of such an agreement, a union obtaining signed union authorization from a majority of employees may demand the employer recognize the union and, while the employer technically can refuse, their refusal often subjects them to a corporate smear campaign. In any event, under established National Labor Relations Board ("NLRB" or "Board") law, once an employer recognized a union following a card check, employees could not decertify the union and no rival union could challenge the recognition under the "recognition-bar doctrine" until a "reasonable period" had elapsed.

In its just-decided consolidated Dana Corporation and Metaldyne Corporation decision, the Board has created a "modified recognition bar doctrine," which provides that, when an employer voluntarily recognizes a union, a post-recognition election bar will not occur unless (a) the affected employees receive notice from the NLRB of the employer's recognition of the union and their opportunity to file a Board election petition within 45 days of such notice, AND (b) 45 days elapses from the notice date without the filing of a validly supported petition. Signatures obtained both pre- and post-recognition can support petitions.

Employers are obligated to bargain with the union during the 45-day window. If the parties execute a contract within the 45-day window and the notice and window-period requirements have not been met, the contract will not bar an election. Only after the 45-day window elapses with no petition being filed will the union's majority status be irrebuttably presumed for a "reasonable period of time," (as in the past) and any contract reached will bar an election for up to three years of the contract term (as in the past). Note that, because the modified recognition bar significantly departs from existing Board law, it applies only to voluntary recognition agreements post-dating the NLRB's September 29, 2007 decision.

The Board's rationale in modifying the recognition-bar doctrine is that (a) Board elections more reliably represent employees' free choice because, unlike card signing, election votes are cast in private; (b) union card solicitation often involves misinformation or lack of information, especially if the employer has pledged neutrality, and the union's access to the employer's premises often makes employees feel they have no real choice; (c) a Board election better reflects employee sentiments at a specific moment, rather than over an extended card-signing period; and (d) an election provides the safeguards against improper employer electioneering that are lacking in the voluntary recognition process.

Employers should be mindful of this new legal development when considering voluntary recognition as part of their labor relations strategy.