Back in August, the Board granted review in Lamon Gasket Co., a case that will reconsider a 2007 Board decision (Dana Corp., 351 NLRB 434). Under Dana, when an employer agrees to voluntarily recognize a union based on signed authorization cards, it may advise employees that they have a 45 day window to file a petition for an election to decertify the union or to support a rival union. If it does not give employees this notice, any contract negotiated with the recognized union will not serve to bar a future election petition during the life of the contract.
Dana was part of a series of rulings issued in the closing weeks of then Chairman Battista’s term. Many of these decisions split as 3-2 votes, and modified existing Board law. Each contained a strong dissent by current Chairman Liebman. Dana and the others provided fodder for highly critical congressional hearings to condemn what some saw as a partisan anti-labor shift by the Board. Chairman Liebman testified at one such hearing, and has reiterated her views consistently many times since. Back in April 2010, after President Obama announced his nominees for the Board, we suggested that Dana would be among the first decisions of the prior Board revisited.
And so it has been. Some fourteen amicus briefs have been filed, following Board invitation, by parties including the AFL-CIO, the U.S. Chamber of Commerce, Senator Orrin Hatch (R-UT), the National Association of Manufacturers (NAM), the SEIU, and Congressmen John Kline (R-MN) and Tom Price (R-GA). The arguments for and against expressed in these briefs shape up essentially as one might expect from a referendum on the Employee Free Choice Act‘s card-check provisions. Those in favor of preserving the Dana holding argue that it is the only way to ensure that employees have a free and fair opportunity to vote for or against union representation in a secret ballot election. Those who would have Dana overturned, argue that the Board has long recognized the principle of voluntary recognition by other means and that the "open period" for decertification announced by Dana only creates delay in the bargaining process, serving to frustrate the will of the majority of employees.
Then-Member Liebman’s dissent in Dana provides a clear indication of where this Board is likely to go in Lamon Gasket:
The voluntary recognition bar, as consistently applied for the past four decades, promotes both interests: it honors the free choice already exercised by a majority of unit employees, while promoting stable bargaining relationships. By contrast, the majority’s decision subverts both interests: it subjects the will of the majority to that of a 30 percent minority, and destabilizes nascent bargaining relationships. In addition, the majority’s view fails to give sufficient weight to the role of voluntary recognition in national labor policy and to the effect of existing unfair labor practice sanctions to remedy the problems the majority claims to see.
What will be more interesting and important to watch is the political fall-out of the Board’s reinforcement of voluntary recognition, and what impact that will have on the labor law debate over the role of the secret ballot. Stay tuned…