Unhappy with the NLRB’s election processes, unions have increasingly tried to compel employers, sometimes through coercive corporate campaigns, to agree “voluntarily” to recognize unions based on authorization cards instead of a secret ballot election.  The so-called “Justice for Janitors” campaign run by the SEIU is a case in point.  In its recent Dana Corporation decision, the NLRB changed the rules regarding what happens when an employer voluntarily recognizes a union.

After Dana (the decision only applies prospectively), an employer who voluntarily recognizes a union must post a notice prepared by the NLRB that will inform employees that they may file a decertification petition within 45 days from the date of the notice.  If a valid decertification petition supported by at least 30% of the employees in the bargaining unit is filed within 45 days, the NLRB will conduct an election to determine the union’s status.  If a decertification petition is not filed, however, the union will be immune from decertification for a “reasonable time” to permit bargaining. 

The NLRB also ruled that valid decertification petitions filed within 45 days of the notice will be processed even if the union and employer have already agreed to a collective bargaining agreement before the 45 day period has elapsed.

Dana represents a major change from current law.  If you would like to discuss the implications of this decision for your business, please call any Taft attorney in the Labor and Employment Department or Kerry Hastings, the author of this e-bulletin.