DECERTIFYING a Union by "card-check"

[Earth Bound Misfit]

I have read in several pro-EFCA articles/blogs etc. that currently there is a provision where a Union can be DE-certified simply by presenting signed cards by a majority (50%+ 1) of the workers in the bargaining unit, but none provides the actual wording and/or a link to the NLRB's procedures to such a de-cert. I've tried to find one, but as of now have been SOL. Any DU'ers who may have any info on this, I would appreciate it if you would post it here or PM me, whichever you prefer.

If it is true that card check can be used to de-certify a bargaining rep/Union, WHERE IS THE MORAL OUTRAGE OF THE "WINGNUTS", HOW WORKERS ARE BEING "STRIPPED" OF THEIR RIGHTS, BLOCK WORKERS FREE CHOICE, HARRASSED, COERCED, (FILL IN HYPERBOLE HERE), etc. in these cases?

I found this on Wiki, but it provides no references:
Decertification can also occur if the employer received substantial evidence that the union no longer has the support of a majority of the bargaining unit. Typically, this is accomplished through giving a petition, signed by a majority of the bargaining unit, to a member of Management.

[Gman]

1. the NLRB must conduct a decert election for a unit to be decertified

nothing's changed as far as that goes.

[Joesunionreview]

2. Bull, It changed with the 2007 NLRB ruling

http://findarticles.com/p/articles/mi_qa5452/is_200807/ai_n27899741/pg_1

Let me talk about this decertification petition and what it means. You may know that our contract expires at the close of business on November 21, 2003. We have notified the union that even though we have a bargaining session scheduled for October the 9th, that it is our intent to terminate the agreement on the 22nd of November. Normally the NLRB will conduct an election within 45 days after the decertification petition is filed. That would mean we would have an election around the first or second week of October. About 6 or 7 weeks from today. We'll have plenty of time between now and then to give you the exact time and place of the election.

In the meantime, we still have an obligation to bargain with the union over the contract that's in place. With a decertification petition filed there's a quirk in the law, that even though a decertification petition is filed, we still have to bargain with the union unless the company has been notified that more than 50% of the employees have signed the petition. If that occurs, then the company can withdraw from bargaining and withdraw recognition from the union. In other words, if you all give us more signatures so that you exceed the 50% mark, the union will be gone. If this doesn't occur, any contract that would be reached in bargaining before the current contract expires on November the 21st would be null and void if you all voted the union out.

http://theunionnews.blogspot.com/2008/09/nurses-to-decertify-cna-by-card-check.html
9/19/08

Employees for Self-Representation say they need less than 50 registered nurses at Fremont-Rideout Health Group to sign a petition to decertify the California Nurses Association without an election. That goal, Self Representation representatives said, is within their grasp.

"We're getting really close," said Jan Brundage, spokeswoman for the employee group and registered nurse at the Feather River Surgery Center. "We're less than 50 signatures away." Brundage said they need a total of 235 signatures to decertify the union without an election. Roughly 450 nurses are employed by Fremont-Rideout.

and from a few non-anti-union source
http://www.truthout.org/article/unions-disclose-long-list-anti-worker-nlrb-cases
Sunday 25 November 2007

And the board was just warming up. On Sept. 29 - a date that will live in the Double Standard Hall of Fame - the NLRB issued two rulings, the first (Dana Corp./Metaldyne) dealing with "card check." This is the process by which an employer can recognize a union when a majority of employees sign cards or petitions affiliating themselves with that union, bypassing the board election process, which an anti-union employer can drag out for years. The board ruled that once a union was certified through card check, the employer must post a notice telling employees that if 30 percent of them sign a petition saying they don't want a union, the 50 percent-plus-one of them that do are overruled and a board election must be held. The Bush appointees argued that card-check isn't a good measure of worker sentiment, since those employees who sign cards and petitions may be susceptible to "group pressure."

On the same day, however, in a case (Wurtland Nursing) involving an employer's withdrawal of recognition from the union in its workplace, the board ruled that if a majority of workers signed cards or petitions asking for a vote to remove the union, the employer could decertify the union then and there without even holding that vote. Signed petitions from workers, in other words, are suspect when the workers want a union and proof positive when they don't.

LIUNA
http://www.liuna.org/SitePanelbar/ContactUs/LegalDepartment/CurrentDevelopments/tabid/1583/Default.aspx

• Contrast Wurtland Nursing and Rehabilitation Center, 351 NLRB No. 50 (September 29, 2007).

• A majority of workers who had a union signed petition stating: “we … wish for a vote to remove the Union….”

• NLRB Decision: Employer can lawfully withdraw recognition from the Union; no election required;

• NLRB Rationale: Employee signatures on a petition are: “objective proof of the employees’ withdrawal of support for the Union.”

• No discussion of petition-signing as a public action susceptible to group pressure even though Dana workers signed individual cards and Wurtland workers all signed a single petition;

• The petition in Wurtland said: “we… wish for a vote to remove the Union….” The NLRB held: “the more reasonable reading of the petition… is that the signatory employees wished (to remove) the Union as their representative, not that they wished to vote to remove the Union.”

• Contrast Shaw’s Supermarkets, Inc., 350 NLRB No. 55 (August 10, 2007)- where employees filed a decertification petition for an NLRB election to eliminate their union, the employer was allowed to lawfully withdraw recognition without any election on the basis of slips signed by a majority of workers stating they did not want the union to continue to represent them;

EDIT: Added Bold
EDIT#2: Removed nasty word

[Earth Bound Misfit]

5. Thank you, Joe...

I was just reading about the CNA union here: http://www.appealdemocrat.com/news/nurses_68922___article.html/union_decertify.html

Also, I found the article where I first read of Unions being decertified by card check. The article ripped George McGovern after his "betrayal" of the Democratic Party in speaking against the EFCA. It quoted no less an authority than Dean Baker, so I knew it pretty much a given that it was true:

http://casadelogo.typepad.com/factesque/2008/08/mcgovern-thetur.html

As Dean Baker of the Center for Economic and Budget Priorities, explained to me in an email, "If anyone is really that hung up on the 'secret ballot' crap then they should be asked why they aren't upset by the fact that current law allows unions to be decertified by card check. The only change with the Employee Free Choice Act is whether card check recognition is at the discretion of the employer of the worker. In other words, it changes absolutely ZERO about whether the right of workers to organize is determined by secret ballot or not. The only thing it changes is who gets to decide the manner of certification, workers or employers."

Thanks for the comprehensive info, Joe.

Which brings me back to my original question: WHERE IS THE MORAL OUTRAGE OF THE "WINGNUTS", HOW WORKERS ARE BEING "STRIPPED" OF THEIR RIGHTS, BLOCK WORKERS FREE CHOICE, HARASSED, COERCED, (FILL IN HYPERBOLE HERE), etc. in these cases

:patriot:

Edit: typo

[Joesunionreview]

6. I'm glad I had to look it up

more info for the unionist

You want rage, create a story, bring up Home Depot, bring up Wal-Mart, add the "Employer Free Choice" that was handed to business by the BUSH NLRB, call it "The employers got their Free Choice, why don't the workers?" or something like that, I'd be glad to put it on my site.

[Earth Bound Misfit]

9. I finally found the "smoking gun"

NLRB General Counsel Issues Guidelines On Employer Withdrawal of Recognition

On November 26, 2008, NLRB General Counsel Ronald Meisburg issued a Guideline Memorandum concerning an employer’s withdrawal of union recognition due to a loss of majority support in the bargaining unit. The memorandum updates prior guidelines issued shortly after the Board’s decision in Levitz Furniture Co., 333 NLRB 717 (2001).

In Levitz, the Board held that an employer may lawfully withdraw recognition from an incumbent union only if it can prove with objective evidence that the union has actually lost majority support. The Board allocated the initial burden of proof concerning loss of majority support to the employer. Once the initial burden is met, the General Counsel may then present rebuttal evidence showing that the union enjoyed majority support at the time of withdrawal or that the employer’s evidence is unreliable. The burden then shifts back to the employer to establish actual loss of majority status.

This Guideline Memorandum clarifies two important points in withdrawal of recognition cases. First, it states that the Board will not issue complaints in cases where the General Counsel’s office or regional offices has objective evidence that the union has lost majority support, even if the employer has no such evidence.

Second, the memorandum clarifies what constitutes objective evidence sufficient to demonstrate actual loss of majority support. The evidence must be direct, untainted, and specific enough to show that a numerical majority of the bargaining unit - 50 percent or more - no longer supports the union. Thus, an anti-union petition signed by a majority of the bargaining unit that contains unequivocal language rejecting the union as a representative, a poll in which the majority of the bargaining unit rejects the union, or firsthand statements from a majority of bargaining unit employees rejecting the union are examples of objective evidence that would be considered sufficient to show loss of majority support. Circumstantial evidence of loss of majority support will be challenged as insufficient under Levitz.

The General Counsel’s office will determine on a case by case basis whether hearsay evidence of loss of majority status, such as hearsay evidence of employee sentiments or polling, is sufficient to demonstrate loss of majority support.

Link to NLRB General Counsel's Memorandum GC 09-04: http://www.nlrb.gov/shared_files/GC%20Memo/2009/GC%2009-04%20Guidelines%20memo%20concerning%20Withdrawal%20of%20Recognition%20based%20on%20loss%20of%20majority%20support.pdf

Edit to fix link

[Gman]

10. Good information I wasn't aware of. However...

they're also NLRB rulings which more than likely do not comply with the NLRA. I didn't think the law had changed. They're trying to change the law through NLRB rulings which can have the same effect if upheld in court.

[Joesunionreview]

11. Check out how many rulings they made

If you read the entire http://www.liuna.org/SitePanelbar/ContactUs/LegalDepartment/CurrentDevelopments/tabid/1583/Default.aspx">LIUNA page they chopped off the head of labor under the Bush administration.

[Earth Bound Misfit]

12. Battista's "September Massacre"

Yes, I read the LIUNA page. Excellent info & analysis of the "September Massacre". I recommend you read (if you haven't done so already) "September Massacre: The Latest Battle in the War on Workers’ Rights Under the National Labor Relations Act by Anne Marie Lofaso of the American Constitution Society for Law and Policy.

Labor rights in countries with predominantly free market economies have generally
passed through three stages—repression, tolerance, and recognition. In the United States,
nineteenth-century state and federal governments repressed labor unions by making conduct,
such as workers banding together for higher wages, subject to criminal penalty and civil
liability. Courts paved the way for tolerating labor unions by overruling repressive precedents.
By the early twentieth century, Congress followed suit by legislatively exempting unions from
certain legal liabilities. In 1935, Congress enacted Section 7 of the National Labor Relations
Act (“NLRA”), marking the first formal federal government recognition of employees’ “right to
self-organization.....and to engage in other concerted activities for the purpose
of collective bargaining and other mutual aid or protection.”

One wonders whether labor rights in the United States has diverged from the repression-tolerance-
recognition pattern, or whether the pattern is merely starting anew. Notwithstanding
the fundamentally progressive nature of Section 7, the protective power of the original NLRA, as
enacted in 1935 (popularly called “the Wagner Act”), has been eroded by congressional
amendments, coupled with successive interpretations of the courts and the National Labor Relations Board (“the NLRB”)—the very agency tasked by Congress with protecting workers’
rights. By weakening the NLRA’s protective power, all three branches of the government have
legally and economically disempowered unions and thus weakened their capacity to protect the
working class.

This paper focuses on several of the sixty-one decisions issued by the NLRB’s five member
Board in September 2007. The labor community has come to regard the Board’s
September 2007 decisions as the “September Massacre.” The term “massacre” suggests an
indiscriminate and instantaneous destruction of a large number of longstanding labor doctrines.
But, upon closer study it becomes clear that many of the September decisions fit into a long
history of legislative, administrative, and judicial cutbacks to the original NLRA.

The September Massacre, then, is more accurately viewed as the latest, and perhaps most
serious, attack on workers’ rights—this time by a Board controlled by appointees of President
George W. Bush (“the Bush Board”). Nevertheless, the characterization of the September
decisions as a “massacre” is arguably accurate for two reasons. First, in many instances, the
Bush Board’s September 2007 decisions cumulatively chip away at the NLRA’s protections
more vigorously than during previous administrations. Second, while historically the courts and
Congress have been responsible for much of the NLRA’s erosion, the September Massacre was
wrought by the very administrative agency charged with protecting Section 7 rights (i.e., the
rights of working people to band together collectively for mutual aid and protection).

Section II of this paper discusses the aggregate, weakening effect on the NLRA by both
the Bush Board and prior governmental action. Section III of this Paper examines one of the
most prominent (and perhaps most damaging) of the September 2007 decisions—Dana
Corporation. Section IV of this Paper concludes with some remarks on what the labor
movement can do to regain economic and political power.

Battista's Payoff was a lucrative position in the Labor Management Relations Practice Group at Littler, Mendelson, a notorious Unionbuster. :puke:

[Joesunionreview]

13. Wow, thank you n/t

[Omaha Steve]

3. NLRB rules nothing about card check to decertify

http://www.nlrb.gov/publications/Procedures_Guide.htm

Types Of Petitions

The NLRB processes 6 types of petitions. The petitions most commonly filed are representation (RC) and decertification (RD) petitions. The RC petition is used when employees are seeking to be represented by a union and the RD is used when employees are seeking an election to vote an existing union out. More information about the 4 other less frequently used petitions can best be obtained by contacting an Information Officer at one of the NLRB's field offices.

Evidence Needed with a Petition

Generally, in order to file a petition with the NLRB, the petition must be accompanied by evidence demonstrating that the petition has the support of at least 30% of your fellow employees. This support usually will be in the form of dated signatures from interested employees who indicate by individual cards or signature sheets that they are interested in being represented by a particular union for the purpose of collective bargaining, or ending a union's representational role by having an election to achieve either purpose.

[Joesunionreview]

4. Not another one...

hehe, this thread had me rack my brain, the decision of 2007 sets a new precedence, they screwed us all. They gave the Employers Free Choice. Please read my last response

I have to be stubborn, I'm probably one of those who has mentioned "How is it OK that an employer can get card check in a decertification?"

[Earth Bound Misfit]

7. Thanks, Steve, I spent about 20 minutes

on their website this afternoon, trying to find info on this, but each of my "searches" kept coming back with 10's of thousands of results, I downloaded their regulations & procedures (pdf} and was able to find much info that way.


Edit for ANOTHER typo (spellcheck is your friend)

[Omaha Steve]

8. I think Joe posted while I looked into it

I didn't see his response when I posted. Good job all around.

I got home late today and didn't do much in this forum. I'll be back tomorrow.