Round-Up of D.C. Bar Association's Discussion of Dana/Metaldyne and the Voluntary-Recognition Bar Doctine
The D.C. Bar Association hosted a discussion on Dana/Metaldyne, voluntary recognition, neutrality agreements, and related topics.
As background, in Dana/Metaldyne, 341 NLRB No. 150 (2004), the Board granted review to reevaluate its long-established "voluntary-recognition bar" doctrine. Under that doctrine, a voluntarily-recognized union enjoys an irrebuttable presumption of majority support for a reasonable period of time. During that reasonable period, the Board will not process a decertification petition. Under current law, an employee who suspects that the union lacked majority support at the time of recognition cannot obtain an NLRB election. In Dana/Metaldyne, however, the Board could eliminate the voluntary-recognition bar or limit it. Various amici have urged the Board to create a window of opportunity immediately following recognition during which a petitioner could file a decertification petition with the support of some percentage of the employees (e.g., 30% or 50%).
At the discussion, Nancy Schiffer of the AFL-CIO derided the Board's decision to grant review in Dana/Metaldyne. She emphasized that the Supreme Court, the Circuit Courts, and the Board have long recognized voluntary recognition as a valid method for a union to become a bargaining representative. Schiffer argued that eliminating or limiting the recognition bar will destroy voluntary recognition. The bar insulates a newly-recognized union from the pressures associated with retaining majority support she argued. Eliminating or limiting the bar will destabilize the relationship between the union and its members and between the union and the employer. Schiffer argued that eliminating the bar would allow a minority of employees to "hijack" the process from the majority of employees who signed cards.
Chuck Cohen of Morgan Lewis brushed aside Schiffer's criticism of Dana/Metaldyne. Cohen noted that the Clinton NLRB reversed precedent on six occasions, each time creating another obstacle for employees wishing to decertify a union. These six Clinton-Board decisions cemented existing bargaining relationships and made it more difficult for employees to remove their union or switch unions. In contrast, the Bush Board is merely considering a change in one case that will make it easier for employees to remove their union or switch unions. Thus, Cohen did not really argue the merits of eliminating or limiting the voluntary-recognition bar. Instead, he essentially argued that the Bush Board is less activist than was the Clinton Board.
Ellen Farrell from the NLRB set forth the General Counsel's position on the voluntary-recognition bar. The GC is urging the Board to limit, but not eliminate, it. She said that the bar serves the legitimate function of stabilizing a new bargaining relationship. She noted, however, that coercion and fraud - however rare - can taint a card check. Accordingly, the GC urges the Board to process an election petition shortly after voluntary recognition if the following conditions are met: the petition must be filed with 30 days from the date that the employer notifies the employees that it has voluntarily recognized the union and the petition must have the support of 50% of employees. If a petitioner can obtain support from at least 50% of the employees, then the Board is justified in questioning the card check's validity.
The panel also discussed neutrality agreements. The generic term "neutrality agreement" covers a host of different types of provisions. A basic neutrality agreement requires the employer to remain silent about the merits of unionization during an organizing campaign. Other neutrality agreements merely obligate the employer (and sometimes the union) from saying anything "negative" about the other side. More detailed neutrality agreements may also give a union access to a facility and employees' names, addresses, and phone numbers. They may also limit the duration of the organizing drive and prohibit a union from picketing. Frequently, parties sign a card-check agreement along with their neutrality agreement.
Nancy Schiffer praised neutrality agreements as a way to bypass slow NLRB election processes. She suggested that employers sign neutrality agreements because they want to limit the duration of a campaign, prevent picketing, and avoid NLRB litigation. She suggested that neutrality agreements are a vital part of today's union movement.
Chuck Cohen criticized neutrality agreements because they "silence" one party and prevent employees from hearing the employer's legitimate argument against unionization. He suggested that employers sign neutrality agreements because of union leverage (through its bargaining power at another facility, a corporate campaign, or its government contacts). Cohen implied this leverage was illegitimate during his critique of neutrality agreements.
An audience member picked up on Cohen's criticism and asked Ellen Farrell whether neutrality agreements constitute unlawful assistance in violation of Section 8(a)(2). She replied that employers have no statutory duty to present employees with an argument against unionization. Thus, an employer's voluntary decision to enter into a neutrality agreement and remain silent is not unlawful assistance, she argued. She did note that where two rival unions are campaigning, the employer has a duty to treat them equally.
The panel next discussed "neutrality-plus agreements," in which the parties simultaneously negotiate a neutrality agreement and some substantive terms of a CBA that will apply if and when the union obtains majority support. Ellen Farrell stated that the GC has issued a complaint in a case alleging that an employer and a union violated the Act when they signed a neutrality-plus agreement. That agreement included a no-strike/no-lockout clause, an interest-arbitration clause, a minimum-duration clause, and a clause limiting the amount the employer would spend on health care. Farrell gave the GC's view that the neutrality-plus agreements are unlawful because they give the (minority) union special status. In fact, she argued that the neutrality-plus agreement constituted an unlawful grant of recognition even though the substantive terms would not kick in until the union obtains majority status. Farrell distinguished lawful after-acquired stores clauses (see post below) on the ground the unions in those cases have majority status at Facility A and negotiate the neutrality-plus agreement (to apply at Facility B) on behalf of the employees at Facility A, who are "vitally affected" by the terms and conditions at Facility B. (Confusing, I know.)
In sum, the rules governing the voluntary-recogntion bar and neutrality agreements may change. The Bush Board has several cases pending that will decide some of these issues. Stay tuned.