It is much more difficult for workers to decertify a union — remove it as the exclusive bargaining representative — than it is to establish a new one at a workplace. Once a union is recognized as the collective bargaining agent, employees cannot decertify it or vote for another union for at least one year, per federal law. This is called a “certification bar.” A similar “contract bar” applies for the period when the union has a current collective bargaining agreement with the employer, which can last up to three years.
Thus, employees often must wait up to four years after certification before they can even consider decertifying a union. After that, employees have only a 45-day window to file a decertification petition with the NLRB. This window occurs between 60 and 105 days prior to the end of the collective bargaining agreement. If the union contract expires or reaches the three-year mark, employees can file a decertification at any time. However, if the employer and union sign a successor contract, the contract bar starts again and employees may need to wait another three years.
In a case involving Dana Corp., the NLRB reinterpreted the contract bar rule to allow for a 45-day period after the initial certification in which employees could file a decertification petition following a card check certification. If 30% of employees signed the petition, they could file with the NLRB to ask for a secret ballot election. However, in 2011, the Board overruled Dana in the Lamons Gasket Co. case and removed this card-check safety valve.[*]
On Sept. 22, 2011, Barbara Ivey, an employee of Kaiser Permanente Northwest, told the House Education and the Workforce Committee that in July 2011 her workplace was organized by the SEIU via card check in less than two weeks. She said that she was never presented with a card.
Ivey and her colleagues then collected signatures for a Dana decertification election. After receiving the requisite number of signatures, she applied to the NLRB for a decertification election. Unfortunately, the Board handed down the Lamons Gasket decision between the time of the petition and the time of the election. As a result, Ivey and her colleagues were denied a secret ballot vote. She told the committee, “I was shocked and quite upset. I thought, ‘How could this be?’ All we were asking for was a fair vote and a private vote, giving everyone a voice.”
Without the Dana safety valve, Ivey and other workers who may have been coerced or made an uninformed choice (or not given a choice at all) during a card check campaign will need to wait four years to attempt to decertify the union.
The four-year period in which workers must wait to ask for a secret ballot election for decertification after card check recognition, coupled with the overruling of Dana, makes addressing the problems associated with card check unreasonably difficult.
[*] Lamons Gasket Co., 357 NLRB 739 (2011). Note: The NLRB is currently reviewing this rule. For more information, see: “NLRB Proposes Rulemaking to Protect Employee Free Choice” (National Labor Relations Board, Aug. 9, 2019), https://perma.cc/A5HZ-67FN.