Jackson Lewis has filed a “friend-of–the-court” brief on behalf of the U.S. Chamber of Commerce, urging the National Labor Relations Board to adhere to its three-year-old decision in Dana Corporation, 351 NLRB 434 (2007) (originally known as Dana/Metaldyne). That decision allows employees to test immediately through a decertification petition and Board-conducted election their employer’s extension of voluntary recognition to a union based on a card check or similar evidence of majority preference. The filing came in Lamons Gasket, Case No. 16-RD-1597, where the agency is preparing to revisit the issue amidst much controversy. James Stone and Kelli Webb Michaud in our Cleveland office wrote the amicus brief, with valuable assistance from Michael Lotito, Phil Rosen, and Harold Weinrich. Mr. Stone had been lead counsel for Metaldyne in the earlier case.
Prior to Dana, in a rule first announced in Keller Plastics, 157 NLRB 583 (1966),the NLRB observed a strict bar, usually for a year, during which it would not consider a NLRB decertification petition or other attempt to oust the union following an employer’s granting of voluntary recognition. As a result, employees in many cases were prevented for a year from obtaining a secret ballot election to decide freely whether to have union representation (or to change unions) while the recognized union and company negotiated a contract.
This rule developed in a different era. When voluntary recognition was relatively rare and an inflexible rule of this sort might be justified in order to preserve labor peace. A secret ballot election was generally regarded as a preferred and more reliable indicator of employee free choice, but in a few cases allowances could be made.
Card-check-based voluntary recognition agreements grew increasingly common in recent decades, however, often based on neutrality agreements. The safeguards of Board-conducted balloting became harder to secure for employees.
The Board in Dana attempted to harmonize voluntary recognition arrangements made by employers and unions with the need to protect employees’ fundamental right of free choice in choosing (or not choosing) a collective bargaining representative.
It required an employer who voluntarily recognized a union to notify employees in a posting that voluntary recognition had been granted, but that the NLRB would accept, for a limited time (45 days following posting), a request to vote on keeping that recognition (or for a rival union). At least 30 percent of the unit employees had to back the move for the Board to hold an election.
Approximately 54 elections have been held under Dana. In 15 cases (approximately 28 percent), employees rejected the recognized union. In two of those elections, employees voted to replace the recognized union with a rival.
Now, however, pro-union members have been appointed to the NLRB. To no one’s surprise, the new Board has decided to re-examine Dana. When the United Steelworkers (“USW”) challenged the direction of a Dana election following a decertification petition contesting Lamons Gasket’s recognition of the USW, the Board seized its opportunity. Over a vigorous dissent by its Republican members, the Board majority directed reassessment, indicating Dana, in its view, likely was unnecessary, burdensome, and contrary to NLRB precedent.
The U.S. Chamber of Commerce, like many employer groups, is concerned that the Board will sacrifice employee free choice in order to help unions organize. The Chamber assisted Jackson Lewis in preparing the amicus brief supporting the Dana rule.
It is axiomatic that NLRB-conducted elections are the preferred form of ascertaining employee choice as to union representation (or the lack thereof). The U.S. Supreme Court, the NLRB, employers, employee groups and even unions all have so concluded. We argue in our brief that Dana helps assure employee free choice and offers valuable safeguards against the abuses of voluntary recognition through card check and neutrality agreements. We reject the current Board’s suggestion that the relatively few instances where recognition has been rescinded under Dana means that the rule is unimportant. This experience may signal just the opposite: that mindful of Dana, parties to such agreements are careful not to overreach. Remove the shadow of Dana, and the old abuses will return.
As a form of “consumer protection” for employees, we believe the rule critical to vindicating employee rights under the NLRA.
Briefing in the case will be completed in November, and a decision by the NLRB is expected early next year.