NLRB may end voluntary recognition and card check

The National Labor Relations Board (NLRB) voted 3-2 in June to review "voluntary recognition" of newly formed unions. Voluntary recognition occurs when a majority of a company’s workers sign cards requesting representation, an impartial third party verifies the cards, and the employer recognizes the new bargaining unit. Although considered a settled legal issue since 1966, voluntary recognition now faces elimination.

Reconsideration of settled issues is allowed when conditions change. Unions successful use of voluntary recognition, says the board majority, is a change in conditions. Bob Battista, a union busting attorney from Detroit’s Butzel Long law firm, is currently NLRB Chair.

Most new union members in recent years achieved unionization through voluntary recognition and card-check according to Stewart Acuff, AFL-CIO Organizing Director.

Decertification bar

The Board will consider whether decertification is barred for "a reasonable length of time" following voluntary recognition. The "decertification bar" (a full year following representation elections) is intended to allow collective bargaining to proceed without disruption.

In the cases being reviewed, a majority of workers at Dana and Metaldyne plants signed cards indicating they wanted to be represented by the UAW. Impartial third parties reviewed the cards and the companies recognized the union. A minority of workers filed decertification petitions that were denied due to the "reasonable time" bar. Appeals of the denials were then financed by the anti-worker National Right to Work (for less) Legal Foundation.

The Board majority has indicated its intent to limit worker rights, writing: "the secret-ballot election remains the best method for determining whether employees desire union representation. In such an election, employees cast a secret vote under laboratory conditions and under the supervision of a Board agent."

The Board statement echoes the anti-worker Labor Policy Association claim that the trouble with authorization cards is they "are signed in the presence of an interested part—a pro-union co-worker or an outside union organizer—with no governmental supervision."

70 years of diminishing rights

Labor historian David Brody writes, "The issue is not that unions coerce workers; this is already prohibited by Taft-Hartley. The issue is that workers talk among themselves and with organizers without ‘governmental supervision."

The 1935 Wagner Act established a government regulated collective bargaining system in the US as a reaction to self-organization. General Motors recognized the Auto Workers union because workers seized factories in Cleveland and Flint and forced recognition.

Brody, in New Labor Forum, writes, "it was self-organization – workers freely associating to advance their common interests – that produced the labor movement and gave it legitimacy."

Card-check and neutrality deals with management are not "self-organization" and do not create educated and commited union members. As one organizer told the Advocate, "only job actions and strikes have ever produced union power."

Labor law history since the Wagner Act is a story of continuously diminishing power for workers and unions. Brody says that the phrase "through representatives of their own choosing" was placed in the law to combat ‘company unions’, a prime employer tactic of the time, but which had been eliminated by other sections of the law. He asserts that it is evolving interpretations of that phrase that have been the key element in narrowing the methods through which we can choose.

The US system of ‘exclusive bargaining rights’ for a single union in a bargaining unit - in contrast to the Spanish system, for example - also contributed to the erosion.

Toxic laboratory

The current Labor Board calls NLRB elections "laboratory conditions". But it is a toxic and infected ‘laboratory’. Employers use dirty and delaying tactics to intimidate and confuse workers out of acting in their own interests. Apparently the kind of "laboratory conditions" which the Board desires is the kind where the results can be controlled, not the kind where everything is clean.

The sit-down strike wave of the mid-1930s left no doubt that the workers wanted union representation. The self-organization needed to seize and defend workplaces gave power and legitimacy to the unions that formed, but these tactics were made illegal. Even so-called ‘secondary boycotts’ are illegal union ‘unfair labor practices’ to which criminal and civil penalties can be attached. On the other hand, employer unfair labor practices require only a written promise to stop doing whatever they got caught doing. No criminal or civil penalties for employers who violate workers rights.

Workers rights have been steadily eroded since the organizing wave of the 1930s, most of the damage coming at the hands of the Labor Board and the courts.

Brody suggests amending state constitutions to establish workers’ right to organize as fundamental. He believes carefully crafted amendments could get past the federal preemption of the National Labor Relations Act; at least, he speculates, a national debate could begin on workers rights.

Union side labor lawyers who spoke to the Advocate, despite the political range between them, offered little hope. They think that if the Board follows its normally slow pace of decision making, a change in President could lead to a change in the Board majority, and could prevent the elimination of ‘voluntary recognition’.

With nothing left to lose on the legal front it is time again for workers and unions to be bold enough to assert the power of self-organization and force changes in the law and the political landscape.

-- Jeff Ditz