A Major Blow: New Labor Rule Will Hurt Organizing

Legal Corner

Volume CVII, No. 12December, 2007

Harvey Mars, Esq.

The labor movement was dealt a major blow in late September, when the Bush-appointed majority on the National Labor Relations Board decided to weaken rules surrounding union organizing.

For decades, there have been two basic ways employees could form a union: either through a secret-ballot election or voluntary recognition.

A secret-ballot election is just what it sounds like: workers vote “yes” or “no” on forming a union and put their vote in a ballot box administered by the NLRB. If a majority of the votes cast are in favor of a union, that union wins and becomes certified as the employees’ exclusive bargaining representative. (For more background on this process, see my column in the October 2004 Allegro.)

But in voluntary recognition, an employer voluntarily agrees to recognize the union, without holding an election. This may or may not involve workers signing dues deduction authorization cards, hence the term “card check,” which readers may have heard of.

Even though secret-ballot elections may sound democratic, the truth is that employers can intimidate workers, who are often afraid to participate in the election process. This may taint the election result. And that result is based upon a majority of the ballots actually cast. Some workers may feel too scared to vote. On the other hand, voluntary recognition is based upon the desires of a majority of employees. So in some ways, voluntary recognition is more democratic.

Also, employers can utilize legal red tape to stall or thwart election results. So basically, voluntary recognition is almost always quicker and better for workers and unions.

This is exactly why the ultra-conservative NLRB has now decided to substantially limit a union’s ability to achieve voluntary recognition.

The NLRB has not banned voluntary recognition outright.

Instead, the labor board has decided that if an employer agrees to voluntarily recognize a union, the employer must post a notice telling the workers that they can decertify the union.


How exactly did the NLRB change the game?

On Sept. 29, the board issued its ruling in Dana Corp., 351 NLRB No. 28 (2007). Anyone involved in the union movement must be aware of the changes in the law and the ramifications of these changes.

The reason why these rules are so onerous is that it gives anti-union workers and their allies a big opportunity to decertify a union.

There is one tiny bright side to this ruling: the decision is not retroactive. It only affects future situations.

The truth is that the Dana decision will totally revamp the way many unions conduct their organizing campaigns.

Because it is often difficult and costly for a union to engage in the formal NLRB election process, many unions have employed less traditional ways of organizing, including voluntary recognition agreements and card check processes.

Ironically, the Employee Free Choice Act — which is currently stalled in Congress — would have provided procedural protections to these less traditional forms of recognition. (See my column in the April 2007 Allegro for more on this legislation.)

In fact, it is obvious that the NLRB’s ruling — which was clearly divided along political lines — is very much a response to the Employee Free Choice Act.

The labor movement must know that the Employee Free Choice Act is absolutely necessary now.


The Dana decision may turn out to be a very short-lived precedent, something not entirely unheard of with the NLRB.

However, as long as this rule is on the books, unions must create new strategies for effective organizing.

Before a union obtains voluntary recognition, it must ensure that it has majority support and that this majority will be committed to bargaining, even if fellow workers try to thwart the process by filing a decertification petition.

As labor activists, we must always be able to see the silver lining in each grey cloud.

Unfortunately, in Dana, the silver lining is a bit harder to see.


How does union recognition really work? Here’s the crux of it.

As long as a majority of workers want a union, the union must be recognized. To put it another way, an employer’s obligation to bargain in good faith with a union arises from the union’s majority status.

Should the union be proven to have lost its majority status – through a decertification proceeding or a successful challenge by a rival union – the employer’s bargaining obligation would cease to exist and the employer may once again be permitted to exercise unilateral control over a workplace.

This is the very reason why union security agreements are such a vital component of any collective bargaining agreement: they assure continuation of the union’s majority status.

(A union security agreement means that workers must join the union after they’ve been working on the job for a certain amount of time.)

Fortunately, there are three time periods during which the NLRB will protect a union from any challenge to its majority status.

One of these time periods is called the “contract bar.” A union can’t be decertified while there is an active union contract in place. By operation of law, this contract bar extends for a period of three years. (This is why a vast majority of collective bargaining agreements have a duration of three years.)

The next period is called the “certification bar.” The certification bar is the period of time immediately following when a union achieves recognition by winning an NLRB election. A union certified in this fashion will have one year during which it will be presumed to have majority support and no challenges will be allowed. Unfortunately, it often takes longer than a year to negotiate a first-time union contract.

Finally, there is the “recognition bar.” This is the period of time after a union achieves voluntary recognition. Pursuant to NLRB precedent, the recognition bar extends for a “reasonable period of time.” Keller Plastics Eastern, Inc., 157 NLRB 483 (1966). This time period often fluctuates, but as a general rule of thumb extended for about six months.

This bar period has now been changed and the Keller decision has been overruled by Dana.

Basically, the NLRB’s decision in Dana overturns 40 years of precedent.

By implementing such a radical change in the recognition bar, it all but eliminates it.


When you need a music lawyer, first try calling Local 802’s law office at (212) 765-4300 or e-mail counselor Harvey Mars at

If it turns out that the union can’t help you, there is a nonprofit arts service organization in town that you may call. It’s called Volunteer Lawyers for the Arts.

VLA offers services in four program areas — legal, education, mediation and advocacy — including pro bono legal representation for low income individuals, a legal hotline, legal clinics for members, mediation services, and in-person appointments with attorneys.

There’s no guarantee that VLA will be able help you, but the first step is to make contact.

A major grant from the New York State Music Fund has allowed VLA to start a new program, called “Ask The Music Lawyer.”

Send an e-mail to Include your legal question, your name, and your phone number. Your question may be answered on the VLA’s Web site, or you’ll receive a call back from an attorney. Not every question may be answered.

You can also call the VLA legal hotline at (212) 319-2787, ext. 1. Check out for more information, including a schedule of upcoming clinics.