The recent decision by the National Labor Relations Board (NLRB), Dana Corp. (351 NLRB No. 28), has resulted in confusion as to its meaning and impact on employers involved in union organizing campaigns framed by neutrality and/or card check agreements. While neutrality and/or card check agreements are still not a pervasive form of union organizing, both AFL-CIO and Change-to-Win unions have continued to aggressively push for them during their respective organizing efforts. Big Labor’s interest in these type of agreements traces back to their efforts to eliminate the NLRB’s secret ballot election in favor of a means that expedites the representation selection process in ways that clearly benefit unions. In other words, unions are looking to change the ground rules so they can more easily increase their membership and dues revenue.
However, through the Dana Corp. ruling the NLRB has struck a balance between a union’s ability to have employers enter into neutrality and/or card check agreements and the right of employees to freely decide whether or not they want to be represented by a union. The NLRB has correctly recognized that there are employees who are disenfranchised by card check agreements because the agreements are made between unions and employers, not unions and employees. Therefore, under the Dana Corp. ruling, employees who become represented by a union through a card check agreement now have the right to file a petition to decertify the union within 45 days of receiving a notice of recognition.
This new wrinkle will probably not stem efforts by organized labor to continue to push for neutrality and/or card check agreements, but it now gives employees an out if union representation is forced on them.