Dana Corporation, 351 NLRB No. 28, 2007

1. 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?

2. 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”

3. 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

4. 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

5. 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

6. 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

7. Other Major Holdings • Voluntary recognition agreements based on majority support legal • 8(a)(2) not implicated

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