Generally, a union can become employees’ exclusive bargaining representative in one of two ways: a secret ballot election following a presentation of signed cards by more than 30% of the bargaining unit members, or a presentation of signed cards by more than 50%. An employer, however, does not have to recognize a union based solely on a majority of signed cards, and can require a secret-ballot vote overseen by the NLRB. Some card checks, however, are done by agreement whereby the employer recognizes the union upon the showing of a card majority and/or the employer remains neutral during the union’s organizational campaign.
In Dana Corp., decided in 2007, the NLRB established that employees always have a right to a secret ballot election. The Board held that when an employer voluntarily recognizes a union based on a card-check, the employer must post a notice of the recognition and of employees’ opportunity to file for an election to decertify the union or in support of a rival union within 45 days of the notice. If within that 45-day window 30% of the bargaining unit members produce evidence that they support decertification, the NLRB will hold a secret ballot election. The NLRB adopted this rule “to achieve a ‘finer balance’ of interests that better protects employees’ free choice.”
Yesterday, however, in Lamons Gasket Co. [pdf], the NLRB reversed Dana Corp. and did away with post-card-check decertification elections.
In reaching its conclusion, the majority relied upon statistical evidence of requests for Dana notices and resulting decertifications:- As of May 13, 2011, the Board had received 1,333 requests for Dana notices.
- In those cases, employees filed 102 election petitions, resulting in 62 elections.
- In 17 of those elections, the employees voted against representation by the voluntarily recognized union.
The Board argued that Dana is unnecessary because employees successfully decertified the voluntarily recognized union in only 1.2% of the total cases in which Dana notices were requested. I look at the numbers differently. Dana is needed because 27% of cases in which elections were held resulted in decertifications. It is intellectually dishonest to draw conclusions from the 98.8% of cases in which no further action was taken and which we know nothing about.
I can also offer anecdotal evidence of the need for Dana. I was one of the successful Dana elections. In my case, the employees presented a nearly-unanimous showing of cards. After the Dana posting, 21 out of 33 employees signed a petition for a decertification election. The entire unit voted, resulting in decertification by a vote of 17-16. In other words, the card check did not accurately represent the employees’ free choice.
For this reason alone, Dana is an important rule that is needed to ensure that employees always have the opportunity to exercise and express their free choice about unionization through a secret ballot election. If we can use a Dana election to ensure that employees have the right to have their voices heard in a secret ballot election, what’s the harm?
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.
Last December
One of the key analyses in any discrimination lawsuit is whether the plaintiff is “similarly situated” to those whom he or she claims the employer treated more favorably. If the plaintiff can establish disparate treatment of those “similarly situated,” he or she can make out a prima facie case and proceed to the bonus round, proving that the employer’s legitimate non-discriminatory reason was a pretext for discrimination. Conversely, a failure to prove “similarly situated” dooms a claim to the summary judgment scrapheap. Similarly situated, though, lies in the eyes of the beholder. How a court frames who is, and who is not, “similarly situated” often is dispositive of the issue of discrimination.
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