NLRB EASES WAY FOR DECERTIFICATION PETITIONS
AFTER CARD-CHECK RECOGNITION--IN THE FUTURE
By Mark Gruenberg PAI Staff Writer

WASHINGTON (PAI)--In a party-line 3-2 decision, the GOP Bush-named majority of the National Labor Relations Board has made it easier for dissenting workers to file decertification--union-ouster--petitions in cases where the firms recognized the unions by card check. But the easier ouster petitions will only come in the future.

In its Sept. 29 ruling involving two firms the UAW organized four years ago by card check, the Bush majority said it’s making decertification petitions easier “in order to achieve a ‘finer balance’ of interests that better protects employees’ free choice.”

The board’s two dissenting Democrats said the ruling “upsets a balance in labor relations.” AFL-CIO President John J. Sweeney called it “outrageous” and said it showed the Bush-named majority is following Right Wing dogma.

The Dana Corp.-Metaldyne Corp. vs. UAW decision is important because unions increasingly use card-check instead of the cumbersome, employer-tilted NLRB elections process. But until now, when the union achieved recognition, regardless of whether it was done by card check or election, there was a long “recognition bar” before dissenters--often covertly aided and abetted by employers--could try to oust the union.

That “recognition bar” is shortened, at least in future card-check cases, by the Bush NLRB majority. But to avoid upsetting current relationships, the majority said it would not apply the new standard to past or pending cases.

That means the ruling won’t affect the two firms involved in this case with the UAW, at Dana Corp., and Metaldyne Corp. The firms did not object to card-check, but had to handle the dissenters’ decertification petitions, filed within days of recognition of UAW.

The majority said no decertification election bar after card-check recognition “will be imposed…unless (1) employees in the bargaining unit receive notice of recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition. If a valid petition supported by 30 percent or more of unit employees is filed within 45 days of the notice,” the board will process it.

Dissenters trying to oust the union can gather signatures for their decertification petition “before as well as after” the card-check recognition, the majority added. “These principles will govern regardless of whether a card-check and/or neutrality agreement preceded the union’s recognition,” the GOP majority ruled.

The AFL-CIO and the UAW together battled against making decertification easier. As an indication of how much workers’ foes wanted to make ousting unions easy, supporters of decertification included 21 members of the House GOP, a Right Wing think tank, lobbies for used car part suppliers, heavy duty manufacturers and motor and equipment makers, the anti-worker Associated Builders and Contractors, the National Restaurant Association, the U.S. Chamber of Commerce, the National Association of Manufacturers, and anti-union Wackenhut Corp., the security guard firm.

Arguing against easing the union-ouster rules and the decertification petitions, the AFL-CIO and UAW pointed out contrasts between voluntary recognition, neutrality and card-check recognition versus the current NLRB election process.

NLRB “elections are not necessarily superior to private voluntary recognition procedures. Board elections resolve questions concerning representation based only on a majority of employees who actually vote in an election process… involving unequal party access, negative campaign tactics, frequent employer coercion, and substantial delay in the resolution of post-election objections or challenges.

“On the other hand, private voluntary recognition procedures” such as card-check “resolve questions concerning representation based on a showing of support from no less than an absolute majority of unit employees. And, in frequent conjunction with neutrality agreements, they provide for a more expeditious employee choice on the issue of union representation with less coercion, misrepresentation, and negative rhetoric,” the AFL-CIO and UAW said.

“Without an immediate bar” to decertification after card-check recognition, the federation and UAW explained, “initiation of contract negotiations will be delayed, employers will be reluctant to comply with information requests from the union, and the incentive to enter voluntary recognition agreements will be substantially reduced or eliminated.” They also pointed out “availability” of NLRB charges “provides adequate safeguards against union coercion in the solicitation of employee card support.”

The board’s three Bush-named Republicans completely rejected their argument.

While labor law permits recognition voluntarily through card-check, they said that “this does not require board policy in representation case proceedings must treat the majority card showings the same as the choice expressed in board elections.

“On the contrary, both the board and courts long recognized the freedom of choice guaranteed employees…is better realized by a secret election than a card check. Secret elections are generally the most satisfactory--indeed the preferred--method of ascertaining whether a union has majority support,” the majority asserted.

Dissenting NLRB members Wilma Liebman and Dennis Walsh said the majority upset a 45-year labor law balance between promoting employee free choice and promoting stable bargaining relationships. The Dana-Metaldyne case overturned a 1962 NLRB ruling.

“Nothing in the majority’s decision justifies its radical departure from that well-settled, judicially approved precedent,” Liebman and Walsh said. “The voluntary recognition bar, as consistently applied for the past four decades, promotes both interests: It honors the free choice already exercised by a majority of unit employees, while promoting stable bargaining relationships.

“By contrast, the majority’s decision subverts both interests: It subjects the will of the majority to that of a 30% minority, and destabilizes nascent bargaining relationships,” they added.

Sweeney said the board “would effectively permit a minority of employees to negate the majority's decision to have a union, even where the employer has agreed to recognize the union” by card-check and is already bargaining with the company.

“As few as 30 percent of the employees will be able to cause such recognition to be set aside and force an NLRB election to try to get rid of the union. This shameful decision reverses decades of precedent around voluntary recognition...The NLRB has shown itself again to be little more than a political tool of Right-Wing Republicans in their continuing assault on working families,” he added.

“The NLRB process is so severely broken that the majority of workers in this country who successfully form an union now do so through a voluntary recognition process. In allowing a small group of workers to undermine both the majority of workers' and the employer's wishes, the board is effectively making a mockery of the law's allowance for voluntary recognition,” Sweeney concluded.