Long one of the hallmarks of labor relations, the “secret ballot” is now in jeopardy. Stating that "substantial issues" have been raised about when a union's support by employees can be challenged by a secret ballot election, the National Labor Relations Board recently decided 3-2 to grant review in two consolidated lines of cases. Although the Board has long held that a "secret ballot" election is the preferable way to test a union's actual support among the employees, the majority of the Board has now signaled its willingness to reverse two Bush-era decisions (Dana Corp. and MV Transportation) and in the process constrain employee free choice. In this Alert we review the likely impact of the reversal of these two decisions.

Review of Dana Corp.
In one line of consolidated cases, the Board will review the decision in Dana Corp., 341 NLRB 1283 (2004). Dana Corp. does two things. It requires the posting of an official Board notice informing employees that their employer has voluntarily recognized a union based on a “card check” and it affords employees the right to test that claim of majority status within 45 days through a secret ballot election administered by the NLRB. The current Board may overturn this. If the Board overturns Dana Corp., it may well result in employees being barred from using a secret ballot (or any other method) to test whether the authorization cards relied upon truly represent the wish of a majority of employees to be represented by the recognized union (as opposed to a different union or no union).

Review of MV Transportation
In the other line of consolidated cases, the Board will review MV Transportation, 337 NLRB 770 (2002). MV Transportation overturned a short-lived “successor bar” doctrine. Under the successor bar doctrine, upon attachment of a successor employer's duty to recognize the union that had represented the predecessor's employees, the union was afforded a non-rebuttable presumption of majority status for a “reasonable” period of time. As a result, the successor's employees were barred from testing that presumption of majority support; even if a majority of employees did not want representation, they were stuck with representation. In MV Transportation, the Board overturned the successor bar doctrine and held that an incumbent union in a successorship situation is entitled only to a rebuttable presumption of continuing majority status and that presumption will not bar a challenge to the union's actual status through a secret ballot election. The current Board may overturn MV Transportation. Should it do that, a union in a successorship situation will be protected from an otherwise valid decertification petition even if it does not in fact represent a majority of the employees.

Practical Thoughts for Employers
So who wins if these decisions become overturned? In his dissent to the decision to review the holding in MV Transportation, Board Member Schaumber made the following sobering observation:
 

“In a time of decreasing union density in the private sector, [the current majority of the Board] appear prepared to elevate and protect the rights of unions—as established by the Wagner Act—at the expense of employees’ free choice and unions’ responsibilities—as established by the Taft-Hartley Amendments.”

In other words, it is not employers who would win. It is not even employees who would win. Rather, only the unions win if these decisions are overturned.


Bullard Law will continue to continue to follow developments at the NLRB and to report on them. Please also feel free to contact us with any questions or concerns about any other employment, labor relations, and employee benefits issues.