Employers Must be Aware of NLRB Requirements When Voluntarily Recognizing a Union

In the current era where it is to be expected that union organizing drives will increase markedly in many industries and workplaces, an employer may be faced with a decision whether it should voluntarily recognize a union. In late 2007, the Board created a new notification procedure that was required to be followed in such circumstances. Employers considering voluntary recognition need to be cognizant of this new procedure.

In Dana Corp., 351 NLRB No. 28 (September 29, 2007), the Board modified its recognition-bar doctrine, holding that an employer’s voluntary recognition of a labor organization does not bar a decertification or rival union petition filed within 45 days of unit employees’ receipt of notice of the voluntary recognition. The Board’s new procedure provides that unit employees must receive notice of a voluntary recognition sufficient to trigger the 45-day period. An employer and/or union that is a party to the voluntary recognition must promptly notify a Regional Office of the Board in writing of the grant of voluntary recognition. The notification to the Regional Office must include a copy of the recognition agreement, which must be reduced to writing and must describe the unit and the date of recognition. Upon receipt of the required notice of voluntary recognition, the Region must send an official NLRB notice to the Employer to be posted in conspicuous places at the workplace throughout the 45-day period. The NLRB received 419 requests for Dana notification during FY 2008. In five of these matters, a petition for certification was filed after notices to employees were posted. In 26 of these matters, a petition for decertification was filed after the notices were posted.

PRACTICE POINTER: Employers must realize that failure to file the required notice of voluntary recognition could lead to future adverse union organizing drives. Employers who voluntarily enter into collective negotiations with a new union without filing the required Dana notice run the risk of revealing critical bargaining strategies which may be utilized by unions at present unknown to the employer.