Informal voluntary recognition could be seen as a more favourable option for employers, as it gives them greater control over the extent of the level of trade union participation. Voluntary recognition and control of cards is usually provided by U.S. unions through agreements with employers, commonly referred to as neutrality and card control agreements. In those circumstances, it is perfectly legitimate to politely reject the Union`s request. However, it is important to consider the views of staff and the potential risk that the union will later seek legal recognition if it believes it has a sufficient level of support. In 2007, the Board of Directors issued its opinion in the Dana Corp. case. The Commission concluded that the policy of voluntary blocking of recognition «should be amended to ensure better protection of employees` legal right to free choice and to adequately implement the legal preference recognized by the court and the board to resolve representation issues by secret ballot of the board.» Dana Corp. found that voluntary recognition did not preclude an election unless (1) bargaining unit employees received reasonable notice of recognition and their ability to file a motion of election to the board of directors within 45 days, and (2) 45 days had elapsed from the date of notification without filing a petition. b.
The 56% estimate is based on 10,783 NLRB-certified union elections and contractual agreements in which the FMCS participated. Other certifications may have led to an initial contractual agreement (for example. B if the FMCS has not been asked for assistance). Therefore, the actual percentage of certifications that led to an initial contract may be closer to two-thirds. The estimates were calculated by the FMCS for the Commission on the Future of Workers-Management Relations (the «Dunlop Commission»). U.S. Departments of Labor and Commerce, Fact Finding Report: Commission on the Future of Worker-Management Relations, May 1994, pp.73, 87, digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1279&context=key_workplace. In June 2004, council voted 3-2 to review two cases in which workers in the collective bargaining unit requested a revocation of certification within a few weeks of the employer`s recognition of a union under a card control agreement.
In the first case, the United Auto Workers (UAW) and Metaldyne Corporation entered into an agreement on card control and neutrality in September 2002. Metaldyne recognized the UAW in December 2003 as a negotiator for production and maintenance workers at its St. Marys, Pennsylvania plant. In the second case, the UAW and Dana Corporation entered into an agreement on card control and neutrality in August 2003. In December 2003, the company recognized the union at its plant in Upper Sandusky, Ohio. Under voluntary recognition, workers have 45 days to submit an application for revocation of certification or an election petition requesting representation from another union. After 45 days, an election request cannot be made for «a reasonable period of time.» (See the «Review of Voluntary Recognition by the NLRB» section later in this report.) First collective agreement after a union won an NLRB election. In our experience, it is common for a union to first apply for voluntary recognition on an informal basis before taking the formal route if this does not lead to the desired outcome. According to a poll by Rasmussen Reports, also in March 2009, 33% of respondents agreed that Congress should amend the law to make it easier for workers to train or join a union; 40% disagreed and 27% did not know. Sixty-one per cent of respondents agreed when asked the following question: «Under the current law, a secret ballot is held when a sufficient number of workers express an interest in forming a union. Is it fair to demand a secret ballot to determine whether workers want to form a union? Thirty-two per cent of respondents agreed with the following question: «Some people believe that a secret ballot is not necessary and that a union should be formed when a majority of workers sign a card saying they want one. If the majority of workers in a company sign a card indicating that they want to form a union, is it fair to form a union without a voice? At the same time, 57% of respondents felt it was «very difficult» or «somewhat difficult» to form a union.105 When a union campaigns to represent workers, do not overreact.
According to the NLRA, this is an unfair labor practice: threatening workers with negative consequences if they support the union; ask workers about their sympathies or inclinations towards their union colleagues; promise workers that if they reject the union, they will receive wage increases and/or other more favourable working and employment conditions than they currently have; follow up to determine which of the workers is involved in the unions. An easy way to remember these prohibitions is to rely on the acronym «TIPS» – no threats, interrogations, promises or surveillance. If supervisors are not already trained on what they can and cannot do in response to unionization activities, and what they do not do, they must be trained immediately so that they do not engage in an unfair labour practice model and practice that could subject the employer to a bargaining order. An VRA usually contains a notification clause. The employer is free to terminate the recognition of a trade union by means of a corresponding notification. Data are based on 6,550 private sector union initiatives from 1978 to 1998. Calculations of the union success rate refer to the six years prior to 1984 – when card cheque recognition was in effect, the nine years from 1984 to 1992, when compulsory voting was in effect, and the six years from 1993 to 1998 after the reinstatement of card control recognition. Chris Riddell, «Union Certification Success Under Voting Versus Card-Check Procedures: Evidence from British Columbia, 1978-1998,» Industrial and Labor Relations Review, Vol. 57, July 2004, pp. 493-494, 506-507, 510. When entering into collective agreements, it is always useful to determine which conditions should grant contractual rights to each employee. The process itself is not easy at all for a union and there are many ways in which a CCA application can fail.
Ultimately, legal recognition by a union can be achieved if there is a vote of the workers concerned in a properly defined collective bargaining unit, which ends with a majority of voters in favor of recognition – if the recognition also has the support of at least 40% of all members of the collective bargaining unit. In the 111th Congress, the Employee Free Choice Act (EFCA) was passed in the House of Representatives (H.R. 1409) and the Senate (p. 560). EfCA would have required the NLRB to certify a union if the majority of workers in a collective bargaining unit had signed authorization cards identifying the union as its collective bargaining representative. The EfCA set a timetable for reaching an initial contractual agreement and increased the penalties for violations by the employer of certain unfair labour practices committed during a trade union campaign or during the negotiation of a first contract. For more information on EFCA, see CRS RS21887, The Employee Free Choice Act (EFCA), by [author name cleaned]. Requiring card verification certification when a majority of employees sign authorization cards can increase the union`s success rate. It is uncertain whether the requirement for a card verification certificate reverses the decline in private sector unionization in the United States. Decreased employment in unionized businesses and revocations of certification may offset an increase in the number of union members due to the recognition of card checks. In addition, the requirement for recognition of the card examination may increase the employer`s resistance to the collection of authorization cards. This note is intended only as a general introduction to voluntary recognition.
Legal advice should always be sought when any of the issues raised in this note arise in practice. At this early stage after the decision, we don`t know if the NLRB`s decision in the Dana Corp. case will be received by most employers. .