As the nation celebrates the 3-day holiday weekend to honor its workforce, the National Labor Relations Board is quietly moving to circumvent the right of workers to secret ballot elections.  A review by the Coalition for a Democratic Workplace (CDW) of critical pending cases has revealed concrete examples of the Board’s efforts to implement card-check and curb worker free speech.

“The Board’s latest actions validate what CDW has said all along:  Craig Becker’s recess appointment means that the Board can move autonomously to promote card check without the need to pass the unpopular Employee Free Choice Act,” said Brian Worth, CDW’s chairman.

Decisions in two key cases, announced just this week by the Board, underscore the effort to undermine workplace democracy:

• In Rite Aid Store #6473, the Obama Board announced that they will revisit the 2007 Dana Corp. decision, which provided important protections to employees facing so called “voluntary” card check agreements.
• In the second decision, Independence Residences, Inc., the Board struck a blow against free speech by refusing to set aside a union representation election where New York state had unlawfully limited the employers’ – but not the unions’ – ability to communicate with employees about the advantages or disadvantages of unionization.

In both cases, Republican Board Members Peter Schaumber and Brian Hayes filed vigorous dissents.

“It’s critical that Big Labor’s back-door attempt to advance the principles of EFCA through NLRB decisions be exposed,” added Worth.  “These cases are just a few examples of how union bosses will push an agenda that sacrifices the rights of employees and job creators at the altar of forced unionization by any means possible.”

Brief Background Summaries of NLRB Decisions

The Dana Corp. decision provided employees a 45 day window to petition for an NLRB secret ballot election if their employer decided to recognize a union based on card-check.  If the Dana decision is reversed by the Board in Rite Aid Store #6473, many employees could be denied the opportunity to challenge a card check through a secret ballot election for years.

Concerned with the inherent flaws of card-check, the NLRB ruled in Dana Corp. that employees have a right, within 45 days, to file a petition for a secret ballot election to decertify the union or in support of a rival union, when an employer agrees to recognize a union based on card-check.  The Dana decision also said the employer must post a notice advising the employees this right.

Since Dana was decided, the Board has held 54 secret ballot elections in the Dana 45 day periods.  In 15 cases – 25% of those elections – the employees have rejected the card check recognition.

In Independence Residences, Inc., an employer sought to set aside a union representation election because a New York state law had unlawfully limited the employers’ right to communicate with its employees about the union campaign.  The New York law effectively prohibited employers from using any state funds they receive to communicate with employees about advantages or disadvantages of unionization.  The employer in the case receives more than 99 percent of its $8 million budget from state funds, thus it was greatly restricted in its ability to communicate with its employees about the union campaign by the state law.

The Board rejected the employers’ petition to overturn the election, even though under U.S. Supreme Court precedent the New York state law in question is preempted by the National Labor Relations Act because of the limits the state law imposes on employer speech and the debate over the pros and cons of union representation.  As one court said about the New York law , “[i]t is difficult, if not impossible to see, however, how an employee could intelligently exercise [his or her representation] rights, especially the right to decline union representation, if the employee only hears one side of the story – the union’s.”