Could Dana Corp be the EFCA compromise?

One of the things the NLRB does well is compile and release statistics on case handling. Sure its self-serving in part, but it does provide raw data. In the latest report there is a real nugget. More after the jump.

Dana Corp misrepresented

My students and readers of this blog know my support for Dana Corp's approach to ensure that employees' right to select union representation by a majority vote is protected against abuse when a union seeks to establish majority support by card check which would support voluntary recognition of the union by an employer. This poster gets the import of the case correct. However, the representation that undoing Dana Corp is a novel way to impose EFCA-esque card check recognition is at best erroneous, and perhaps pure political posturing, as is other political comentary in the post. Undoing Dana Corp would return the law of voluntary recognition to its decades long, stable procedures which existed before the Bush majority NLRB decided Dana Corp in 2007. We do not see this as positive change because it diminishes a protection for workers (much as we believe card check recognition in EFCA would do), but it is not a radical departure form pre-2007 Board law. More background on Dana Corp's effect here.

Dana Disinformation

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.

EFCA compromise?

Last week Senator Arlen Specter (D. Pa.) indicated he had worked out a compromise on the Employee Free Choice Act. No bill has been introduced and the details are sketchy. When I spoke at the LSU Labor and Employment seminar in March on EFCA, I predicted Labor, and its allies in Congress, could not succeed with card check recognition which deprives employees of a secret ballot election. Taking away a right to vote in a secret ballot election is a sound bite that resonates with the public and the politicians. The political solution to this impasse has already been served up by the "Bush" Board and it looks like Senator Specter is embracing that path. More after the jump.

Dana done

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.

Dana Corp and EFCA

The 2007 NLRB decision in Dana Corp. probably irritated labor as much as any decision of the Bush Board. Essentially it gave employees an opportunity to contest the validity of a showing of a union's majority status by card check. Before a card check campaign could result in certification of a union, employees must be notified and provided a 45 day window to rally against card check and present evidence sufficient for the NLRB to conduct a secret ballot election. In reality this approach created a rationale safety valve to prevent coercive card check tactics. We have argued before unions should have embraced this model and should have adopted it as their reform proposal. It would have liberated the labor reform movement from the valid accusation it was attempting to eliminate secret ballot elections. Under Dana, the unions have seen few card check majorities successfully challenged. Thus, unions could have likely attained a new election process model which would have allowed majority status to be established by card check, subject only to employees havinv=g a brief window in which to challenge the validity of the card check majority. This article does a pretty good job of reviewing the issues. Unfortunately it looks like the new NLRB will revert to the old law under which a union can obtain voluntary recognition from an employer based upon card check alone. Frankly, this incentivizes collusion between an employer and a labor organization to accept a card majority which may not reflect the informed choice of a majority of the employees at any given time. There were a lot of questionable decisions by the Bush Board overturning years of Board precedent, but Dana Corp was not one of them. It properly protected the employees interest in having their collective will more likely determined in a fair manner.

Practice and Procedure Committee meets.

This blogger attended the Regional Meeting of the ABA Practice and Procedure under the NLRA Committee held today in New Orleans. This is a meeting where union and management representatives discuss procedural issues with NLRB personnel which may seem a little too "inside baseball" to some. Although not a true agenda item, EFCA was discussed. Since it remains unclear as to what a final Act will look like, little specific preparation has been undertaken by the Board. Also of note, case filings in Region 15 (New Orleans) in FY 2009 were close to 600. Decisions by the current 2 member (3 vacancy) NLRB have topped 500. Discussions about the effect of Dana/Metaldyne were also most interesting, although there had been a number of Dana Notices issued, only one election had been conducted, and the union won that election. We have consistently chided our friends representing labor that Dana/Metaldyne would have been an easier political sell than pure card check has been. These anecdotal statistics suggest it might also be a very effective alternative for labor to explore.

Reconsideration of voluntary recognition and Dana Corp.

The NLRB has invited amicus briefs in cases involving voluntary recognition and a request to reconsider Dana Corp.

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.