Is the Labor Board Going to Undermine Majority Rule?
At the end of last August the National Labor Relations Board began the process of reconsidering its decision in a case known as Dana Corp., issuing a request for briefs from interested parties on the effects of the Dana ruling on unions, employers and workers. This is a process that Michigan, with its still-powerful union movement, will want to watch closely.
The Dana decision, made in 2007, had to do with what was then an increasingly common scenario in which an employer agrees in advance with a given union that it will allow said union to organize by card-check. In a card-check, unions collect workers' signatures on cards that indicate union support. Cards are an extremely unreliable indicator of support — the percentage in favor of unionization almost always drops between the collection of cards and the holding of a vote — and leave workers vulnerable to fraud or intimidation by union agents.
In terms of determining when a union will represent a group of workers, the basic principle is supposed to be majority support. If majority support is at issue, a secret-ballot vote will settle the issue. Employers are also allowed to recognize unions voluntarily without an election, the presumption being that employers would tend to oppose unionization and wouldn’t concede without good reasons, but card-check agreements turned that on its head, creating the possibility that unions could be imposed on workforces that generally did not want them.
So why would employers agree to card-check? Sometimes they are pressured into agreeing by political or public relations pressure. Or a unionized company might pressure its suppliers to agree to card-check in order to curry favor with its own union. The problem with all this is that the federal labor law isn’t supposed to provide for workers to be unionized after the company makes an agreement with a union — union representation is supposed to be the workers' own choice.
In its Dana Corp. decision, the board decided that the preference of workers trumped those of employers and union officials, and allowed workers to petition for a vote on their own after an employer recognizes a union voluntarily. The Dana decision undermined the value of card-check agreements to unions, at least in workplaces where union support is shaky; a union’s “victory” can be undone if a majority of workers are actually opposed. More important, the decision vindicated the right of workers to choose their own unions instead of being pushed into one by employers and unions.
Card-check is an important component of the “Employee Free Choice Act” that remains stalled in Congress. Public opposition to card-check is the primary reason this bill has not progressed. It would be very troubling if the board were to revive card-check after it has been rejected by Congress.
The Dana decision is now being reconsidered, with the board asking for legal briefs on its rules and its effects. It’s certainly reasonable that the board would want input on how the Dana Corp. rule has worked out, but any further deliberation needs to focus on the interests of workers. Unions are supposed to represent workers after all, and not anyone else.