Dana corporation 351 nlrb no 28 2007
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Dana Corporation, 351 NLRB No. 28, 2007. Legal Issues

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Dana corporation 351 nlrb no 28 2007
Dana Corporation, 351 NLRB No. 28, 2007

  • Legal Issues

    • Should employees in a bargaining unit to be able to challenge an employer’s lawful voluntary recognition of a union based on an employer’s good faith belief, based on a card-based majority, that the employees in the bargaining unit wish to be represented by the union?

    • Should the Board modify its voluntary-recognition bar to permit, under certain circumstance, a challenge to a lawful voluntary employer recognition of a union?

  • Fundamental NLRA Issues

    • How should NLRB balance tension between employee choice and industrial peace?

Previous holding
Previous Holding

  • Keller Plastics, 1966

    • Board will not permit a challenge to a voluntarily recognized union majority union for a reasonable period of time

      • Generally no question of 8(a)(2) or 8(b)(1)

    • Permits unions to establish itself is a bargaining representative

    • Called the “Recognition Bar”

Dana holding key points
Dana Holding – Key Points

  • Basic Holding

    • Recognition-Bar triggered if

      • Ees in unit notified of right to file a decert or rival union petition within 45 days of notice of recognition

      • No valid petition filed within 45 days of notice

        • Valid petition if 30% of unit employees sign

  • Secondary Holding

    • Holding to be applied prospectively

      • Avoidance of disruption of existing bargaining relationship

    • Existence of a pre-existing card check/neutrality agreement irrelevant to holding

    • Obligation to bargain commences immediately upon recognition

Majority decision rationale
Majority Decision Rationale

  • Legal

    • No statutory basis for voluntary recognition bar

  • Industrial Relations

    • Card signings subject to group pressure

    • Card signings often accompanied by

      • misrepresentation of card use

      • misinformation or lack of information

        • Do ees know consequences of card signing when recognition voluntary?

    • Length of time of card signing means ees may change views

    • Rerun elections if post-petition electioneering violates laboratory conditions

Majority decision rationale cont
Majority Decision Rationale (cont.)

  • Differences Between Recognition Bar and Other Election Bars

    • Certified union after an election (Brooks)

    • No unfair labor practices by er (Franks Bros.)

  • Recognition Bar postponed for 45 days, not eliminated

    • Stability still protected

  • Er and union may still campaign against decertification petition

Dissent concurrence

  • Object of NLRA is industrial peace

  • Bargaining obligation based on 9(a) – majority status, not 9(c) – election results/certification

    • 9(a) does not say how majority status to be established

  • Protects free choice of ees who signed cards

  • Union needs time to establish itself

  • Employers do not demand an election in order to avoid the associated expense and disruption

  • Delays in establishing the bargaining relationship

  • Puts the union under pressure to produce immediate results while er may be discouraged from being attentive to bargaining

  • Allows minority of ees to delay will of majority

  • No support for majority’s claims on why ees sign cards

    • Anti-union petitions also “public auctions”

  • Standard remedies for 8(b)(1) or 8(a)(2) violations

  • No need for a “second chance” for anti-union employees during a post-recognition card signing campaign

Other major holdings
Other Major Holdings

  • Voluntary recognition agreements based on majority support legal

  • 8(a)(2) not implicated


  • Is there/should there be a statutory policy of encouraging collective bargaining?

  • Is the purpose of the NLRA to encourage industrial peace?