In October 2007, the National Labor Relations Board (NLRB) released a long-awaited decision in the Dana Corp. case. In a party-line decision, the Republican-dominated board overruled a 40-year-old precedent and held that employees have 45 days, after receiving notice that their employer has recognized a union based on a card-check majority, to file a petition for a decertification election or to support an election petition by a rival union. The petition must have the support of at least 30 percent of the bargaining unit.

Historically, there have been two widely used methods for certifying a union in the private sector: voluntary recognition and certification by election. Voluntary recognition, often referred to as "card-check" recognition, allows a union to be certified if the union can show that a majority of the workers indicated they want representation by signing authoriza-tion cards. Certification by election allows a board-conducted election to determine whether a union represents a majority of the workers in a workplace.

For more than 40 years, the NLRB has held that, when a union is certified by voluntary recognition, a "recognition bar" prevents employees from seeking a union decertification vote for a "reasonable period" of time. The "reasonable period" is currently understood to be approximately one year.

The board's recent decision to allow a decertification petition to be filed within 45 days will make organizing by voluntary recognition more difficult in the private sector. Organizers will need to remain vigilant during the period immediately following certification and prepare for the possibility of an early decertification battle. The decision also may affect the willingness of employers to negotiate a first contract during the 45-day period on the basis that a decertification petition may be forthcoming.

The case stems from an agreement by Dana Corp. and Metaldyne Corp. with the United Auto Workers not to interfere in workers' efforts to form a union and to recognize the union if a majority of workers have signed union authorization cards. After the union was recognized, employees in each unit filed a petition seeking a decertification election. "This shameful decision reverses decades of precedent around voluntary recognition," said AFL-CIO president John Sweeney.

The ruling is another in a series of bad decisions by the NLRB. Last year, in three cases collectively known as Kentucky River, the NLRB issued a broad interpretation of the term "supervisor," which will lead to more employees being deemed supervisors and therefore not allowed to join or organize a union.