by Mike Eastman
And so it begins. The Obama Board has commenced the process that will likely lead to the reversal of a number of important precedents. On August 27, 2010, the last day of Member Schaumber’s term, the Board issued a multitude of decisions, several of which were contentions. Perhaps the most significant involves the precedent established in Dana Corp. (commonly referred to as Dana/Metaldyne), 351 NLRB 434 (2007). In that case, the Board gave employees the right to demand secret ballot election if a union and their employer tried to circumvent the election process by agreeing to card check recognition. Prior to this decision, employees had no way to demand an election if the employer agreed to recognize a union based on authorization cards.
On August 27, 2010, the Board, with Republican Members Schaumber and Hayes dissenting, issued its decision in Rite Aid Store #6473, 355 NLRB No. 157, finding “substantial issues concerning voluntary recognition arising under the Board’s decision in Dana.” In conjunction with the decision, the Board issued a Notice and Invitation to File Briefs. In it, the Board stated:
Dana was decided nearly 3 years ago. To date, over 1,000 requests for voluntary recognition notices have been filed. As a result, the Board is now in a position to evaluate whether its decision in Dana and the procedures developed to implement that decision have furthered the principles and policies underlying the Act. In addition, parties to voluntary recognition and affected employees are now in a position to inform the Board whether Dana and the procedures implemented pursuant to Dana have advanced or hindered employees’ choice of whether to be represented and the process of collective bargaining that should take place if employees choose to be represented.
The Board has requested briefs to be filed by Nov. 1 addressing whether the Board should modify or overrule Dana. The Board also invited comments on several specific questions and invited the submission of empirical data and factual descriptions of their experience under Dana.
Members Schaumber and Hayes wrote a strong dissent defending the Dana decision and noting that it has not created uncertainties to destroy the incentives for voluntary recognition, as had been predicted by the dissent in Dana. Schaumber and Hayes recount statistics showing that since the Dana case was issued, the regional offices have received “1111 requests for voluntary recognition notices, 85 election petitions were filed, 54 elections were conducted, and in 15 of those elections employees voted against the voluntarily recognized union, including 2 elections in which a petitioning union was selected over the recognized union.” The dissent concluded that these statistics show that “we already have empirical evidence showing that Dana has served its purpose of protecting employees’ free choice without discouraging voluntary recognition or the overall process of collective bargaining. There is not a scintilla of objective evidence to the contrary.”
In a concurrence, Chairman Liebman responded to the dissent stating that she was interested in what members of the labor-management community had to say about this data and its lessons. She noted that the data tell nothing about hypothetical labor agreements that were not reached due to the parties concerns over Dana. She also questioned whether the “asserted benefits of the Dana regime outweigh its costs” noting in a footnote that the recognized union was not rejected in 99 percent of cases and so “it is arguable that Dana did not serve any clear purpose.”
It is ironic that the first major case the Obama Board is moving toward reversing will actually deprive employees of rights under labor laws. While the majority opinion goes out of its way to say that it has not made a determination on the merits of reversing Dana Corp. or MV Transportation this is the first step in that process. The very active period that Board observes have long predicted has now begun. You can bet that organized labor will file briefs to ensure the record supports overturning this decision. Employers and counsel would be wise to file briefs as well to provide balance to the record and ensure that it accurately reflects experiences under these decisions.