In a highly anticipated ruling, in Dana Corporation, the National Labor Relations Board ("NLRB") altered its rules regarding an employer's voluntary recognition of a union based on a card check majority. In the past, such voluntary recognition precluded employees and rival unions from filing decertification petitions for a "reasonable time" — sometimes up to a year. Under the new rule set forth in Dana, a decertification petition may be filed within 45 days of the employer's voluntary recognition, provided the petition is supported by at least 30% of the employees in the bargaining unit.

The Voluntary Recognition Bar Had Applied Immediately

The basic premise of voluntary recognition has not changed — an employer is permitted to voluntarily recognize a union that has secured signed authorization cards from more than 50% of the employees in the proposed bargaining unit. However, the Dana decision changes the effect of this voluntary recognition.

Prior to the NLRB's ruling in Dana, an employer's voluntary recognition of a union (upon a proper showing of authorization cards) immediately prohibited rival unions or members of the bargaining unit from attempting to remove the union — through the filing of a decertification petition — for a "reasonable time." This was known as the "voluntary recognition bar." Although the definition of a "reasonable time" varied depending of the circumstances of a case, the NLRB had found a period of about a year to be reasonable. The voluntary recognition bar took effect immediately upon the employer's agreement to voluntarily recognize the union. Moreover, if the employer and the union executed a collective bargaining agreement during that "reasonable time," a rival union or bargaining unit member could not file a decertification petition for three years — known as the "contract bar."

The Impact of the Voluntary Recognition Bar is Delayed by Forty-Five Days

As a result of the NLRB's recent ruling, the voluntary recognition bar now does not take effect until 45 days after the bargaining unit employees receive notice of the union recognition. The employer and/or the union are required to provide notice to all bargaining unit employees of the recognition and of their right to file a decertification petition or to support a rival union's decertification petition within the 45-day period. If such a decertification petition is filed within the 45 days, and the petition has the support of at least 30% of the unit members, the decertification petition will be processed. If no decertification petition is filed during the 45 days, the voluntary recognition bar will then take effect.

Similarly, the three year contract bar doctrine will not take effect until after the same 45-day period, so that any collective bargaining agreement reached during the 45-day period will not preclude a decertification petition until after the 45 days has passed.

Elections are the More Favored Method for Resolving Representation Issues

In explaining its modification of the voluntary recognition bar, the NLRB reiterated that Board-sponsored elections are the preferred method for resolving questions concerning employee representation. The NLRB outlined four primary reasons why authorization cards are "inferior to the election process": (1) unlike secret ballot elections, authorization cards are typically signed in front of others — including union organizers — and are therefore less reliable because the employee's decision is subject to group pressures, (2) union card-check campaigns have been accompanied by misinformation and/or a lack of information about employees' options, (3) unlike Board-sponsored elections which provide employee preference at a moment in time, authorization cards are signed over an extended period, sometimes over a year, "and employees can and do change their minds about union representation," and (4) the NLRB is authorized to invalidate elections that are conducted under improper conditions.

The Impact of the NLRB's Ruling

As a result of the NLRB's decision in Dana, employers who wish to voluntarily recognize a union upon receipt of a majority of signed authorization cards need to provide proper notice to the potential bargaining unit members (and to the NLRB). However, the advantages of doing so (most notably the ability to avoid the time and expense of a Board-sponsored election) might be diminished if a proper decertification petition is filed during the 45 day period — resulting in a Board-sponsored election.