Dana undone

In 2007 the NLRB decided Dana Corporation, a thoughtful decision about how to safeguard employees rights to select their bargaining representative. In Lamons Gasket Co., (download here) the Board returns to its pre-Dana law which does not allow a challenge to voluntary recognition by dissident employees. There is always potential for collusive or abusive action in a voluntary recognition scenario (where an employer agrees to recognize a union without an election to determine majority status support for the labor organization). Dana provided a mechanism for a significant number of employees to challenge voluntary recognition by petitioning the NLRB to conduct a secret ballot election to determine whether the union actually represented an un-coerced majority of the employees. This was a pro-employee decision and a prototype for labor reform that avoids the EFCA albatross of eliminating secret ballot elections. Our previous posts are here and here. Essentially card check majorities would be valid, unless 30 percent of the affected employees petitioned for a secret ballot election within 45 days of being notified of voluntary recognition. While many Bush Board decisions altered labor law in ways that advanced employer interests to the detriment of labor, Dana was an enlightened attempt to protect employee rights.

Preemption of state secret ballot legislation

Earlier this month NLRB General Counsel Lafe Solomon urged threatened to sue four states unless they acknowledge their recently passed state laws requiring secret ballot elections are preempted by the NLRA. The four state's attorneys general have now responded. The point asserted is that the state laws are consistent with the NLRB's current law which also requires a secret ballot election when an employer refuses to recognize a union voluntarily. If that were the end of discussion, the AG's would be correct, but the head scratchers would ask what is the reason to pass such legislation. It is widely believed the legislation is a preemptive strike against the possibility the NLRB might change its rules, or Congress might pass something like EFCa. If such a conflict arose, it would be real and implicate federal preemption. Also, the state laws purport to regulate voluntary recognition, which likely will revert to pre-Dana law which guarantees no secret ballot election.

Dana Corp uninformtion

Sometimes the posturing goes overboard, like here. The poster, a frequent source of pointed anti-EFCA, anti labor posts, does a disservice to the legitimate arguments against both. We have consistently written in favor of the NLRB's 2007 decision in Dana Corp, and its positive protections which avoid collusive imposition of a union on a workforce without a secret ballot election to determine majority status. We have argued Dana Corp would have been a better pattern for EFCA reform than EFCA. We still believe that to be true. But the reality is Dana Corp changed labor law, and the Obama Board's return to pre-Dana law of recognition (the old law was in place for 50 years) is less remarkable than the Dana decision itself. Posters who suggest otherwise are uninformed, or worse.