Ken Dolin Published in National Law Journal

”The ‘Dana Corp.’ Decision”

Ken Dolin’s article, “The ‘Dana Corp.’ Decision,” was published in the October 22, 2007 issue of National Law Journal. The article examines the National Labor Relations Board’s September 29, 2007 modification of its recognition and contract bar doctrines by holding that an employer’s voluntary recognition of a labor union does not bar a decertification or a rival union petition filed within 45 days of the notice of recognition. The previous policy was in effect for 40 years.

Ken notes, “The issue before the board was whether an employer’s voluntary recognition of a union based on a presumably valid majority showing—usually consisting of signed authorization cards—should bar a decertification or rival union election petition for some period of time thereafter. In Dana, the board majority… concluded that although the justifications of providing an insulated period are sound, they do not warrant immediate imposition of an election bar following voluntary recognition.”

Ken further remarks that, “the board recognized the greater reliability of the board elections and the numerous reasons that authorization cards are inferior to the election process… The board thus modified its recognition-bar doctrine to better protect employees’ free choice. Under the new policy, an employee or rival union may file a petition during a 45-day period following notice that a union has been voluntarily recognized.”

Finally, Ken notes, “Dana represents a significant departure from the board’s voluntary-recognition bar.” He concludes that, “it seems apparent that Dana has limited the utility of labor unions relying on card checks and neutrality and voluntary-recognition agreements to bypass NLRB elections,” and it “may also encourage unions to push even harder” for a legislative means to strengthen the use of neutrality agreements and card-check recognition to organize employees.