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Dana Corporation, 351 U.S. 28, 2007

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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?
1
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”
2
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
3
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
4
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
5
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 postrecognition card signing campaign
6
Other Major Holdings
• Voluntary recognition agreements based on
majority support legal
• 8(a)(2) not implicated
7
Issues
• Is there/should there be a statutory policy of
encouraging collective bargaining?
• Is the purpose of the NLRA to encourage
industrial peace?
8
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