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
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
issues
Issues
  • Is there/should there be a statutory policy of encouraging collective bargaining?
  • Is the purpose of the NLRA to encourage industrial peace?
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