The Board recently sought briefs in Lamon Gasket Co., a case that will reconsider the 2007 Dana Corp. decision, 351 NLRB 434). Under that more notorious Dana decision, when an employer agrees to voluntarily recognize a union based on signed authorization cards, there is a 45 day window in which the employees may file a petition for an election to decertify the union or to support a rival union.
In a December 6, 2010 decision, the National Labor Relations Board has dismissed the Complaint in another case involving Dana Corp., 356 NLRB No. 49, which alleged that the Employer and the UAW had violated the Act by respectively rendering and accepting unlawful support.
The parties had agreed to a Letter of Agreement (LOA) which set forth ground rules for both parties
that would be applicable in any organizing campaign. These rules included an employer commitment to "neutrality" during organizing, to provide employee information to the union and to provide access to Employer property upon union request. The LOA further set forth certain parameters for future bargaining on particular topics, if and when the UAW was successful in its organizing efforts -- including contract duration, healthcare cost sharing, attendance and mandatory overtime.
Back in 2004, the General Counsel issued a complaint alleging that the LOA provided unlawful assistance to the UAW in violation of Section 8(a)(2) and (1) of the Act and the UAW coerced employees in violation of Section 8(b)(1)(A). An Administrative Law Judge dismissed the Complaint on both procedural and substantive grounds. After accepting amicus briefs from over a dozen organizations, the Board issued a 2-1 decision dismissing the Complaint.
In approving the pre-recognition agreement in this case, Chairman Liebman and Member Pearce held: "The Board and courts have long recognized that various types of agreements and understandings between employers and unrecognized unions fall within the framework of permissible cooperation." But the scope of the broader application of this decision is unclear, as the majority opinion also states:
We leave for another day the adoption of a general standard for regulating prerecognition negotiations between unions and employer. As the Supreme Court has observed, there are issues of labor law where the “’nature of the problem, as revealed by unfolding variant situations,’ requires ‘an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer.’” Eastex, Inc. v. NLRB, 477 U.S. 556, 575 (1978), quoting Electrical Workers v. NLRB, 366 U.S. 667, 674 (1961).
Member Hayes dissented, refusing to distinguish the case from precedent. According to his dissent, the holding in Dana threatens:
the establishment of collective-bargaining relationships based on self-interested union-employer agreements that preempt employee choice and input as to their representation and desired terms and conditions of employment.