Daily Labor Report, November 6, 2007, Tuesday

Daily Labor Report, November 6, 2007, Tuesday

Daily Labor Report

Former NLRB Member, Union Counsel
Question Dana Recognition Decision


NEW YORK--A management attorney who was a Reagan administration appointee to the National Labor Relations Board joined a union general counsel Nov. 5 in questioning the wisdom of the board's September decision making a sweeping change to the recognition bar doctrine.
At a labor law forum held by Cornell University's ILR School in conjunction with Cornell Law School, both Marshall Babson, a partner in the law firm Hughes Hubbard & Reed, and David M. Prouty, general counsel of UNITE HERE, roundly criticized the board's 3-2 decision in Dana Corp. (191 DLR AA-1, 10/3/07 ; 351 N.L.R.B. No. 28, 9/29/07). Babson was appointed to a Democratic seat on the board by Reagan in 1985.

In the Sept. 29 decision, the board ruled that employees have 45 days after receiving notice that their employer has recognized a union based on a card check majority to file a petition for a decertification election or to support an election petition by a rival union. A subsequent memorandum from NLRB Associate General Counsel Richard Siegel laid out notice and posting requirements based on the decision (207 DLR A-2, 10/26/07 ).


'Premises for Change.'

Babson, in his remarks, questioned the "premises for change" underlying the new board policy. Although the decision suggests that there has been "some sort of proliferation of neutrality agreements," the rule that it sets is not limited to negotiated card check agreements, but applies to all voluntary recognition, he said.
Noting that voluntary recognition "goes back to 1935," when the National Labor Relations Act was passed, Babson added: "There is nothing in the statute that requires opposition to organization."

He noted that briefs had been filed in support of the current voluntary recognition bar by large automobile and auto parts manufacturers, Levi Strauss & Co., Liz Claiborne Inc., and other employers with successful collaborative relationships with unions.

"In terms of the premises for change, I am not overwhelmed by the statements made in the decision or about the decision since it was issued," Babson said.

He likened the board's involvement in voluntary recognition decisions under Dana to the government stepping in as a third party in any contractual relationship, such as the selling of a house.


'Federalization' of Process

The management attorney further questioned whether there is any substantive difference between a card check and a secret ballot election in the likelihood that workers would change their minds about seeking a union, and objected to the "federalization" of the voluntary recognition process.
Suggesting that the "three conservative Republican" appointees in the majority had departed from their small-government philosophy to create a "formalized board procedure" for posting notices, Babson asked why the case requires "an official board posting, with the seal of the United States."

He continued, "Why not just have the parties, as in so many other instances, prepare their own notices?"

Babson also raised questions about the board's plan for a voluntary recognition data bank, including whether it would tip off anti-union activists or competitors to the location of bargaining units.

"Who will have access to this data bank?" he asked. "For what purpose? The data bank troubles me greatly."

The data bank could serve to allow outside groups to inject themselves into long-standing, successful bargaining relationships and disrupt them, Babson warned. In other cases, he said, the very location of a bargaining unit could be valuable as proprietary information in many competitive industries.

He also scored the board for "inconsistency," pointing to a ruling also issued Sept. 29 in Diversicare Leasing Corp., d/b/a Wurtland Nursing & Rehabilitation Center (351 N.L.R.B. No. 50) that he said had addressed issues similar to those in Dana without any discussion of the differences between the two rulings.

Prouty, in his remarks, suggested that he would have called Dana "the worst decision I can remember in my years as a labor lawyer," except that the board "also came out with about 69 equally bad decisions" at the same time.

"So I'll call it the most insulting decision to workers in recent memory," he continued. "It's cynical, paternalistic, and geared to stop unions from organizing."

Dana undermines freedom of association and contradicts the preamble of the NLRA, which encourages collective bargaining, Prouty said, commending the dissent in the case.


Employee Free Choice

The union attorney suggested that it was not coincidental that the majority decision used the term "employee free choice" 12 times in eight pages, in what he said was an attempt to "co-opt" the principle behind the union-supported Employee Free Choice Act legislative proposal.
He further accused the majority of abandoning "the Republican idea that any parties can enter into an agreement" and trying to "undermine agreements unions and employers enter into." He also questioned the board's authority to enter into "this whole new system" without any rulemaking.

Commenting on the notice specified in the general counsel's memorandum, Prouty said it would invite decertification petitions. "It stinks," he said. "It's terrible. The notice itself [departs] from Section 7 rights."

Unions "will have to live with" the Dana decision and decide, case by case, how to address it, Prouty said. "We haven't made any hard and fast decisions," he said.

Options cited by Prouty include going along with the requirements, choosing the consent election route, or writing in language giving the union control over the timing of when to inform the board of a voluntary recognition agreement and thus the start of the 45-day period.

"We can't go back to board elections," he said. "Consent elections are not used much, but they may be a better alternative."

But the best union strategy for dealing with the Dana decision, Prouty argued, would be to elect a Democratic president and a Congress that will pass the Employee Free Choice Act. Only a few hundred votes for presidential candidate Ralph Nader in Florida in 2000, he suggested, determined the election that made the current board majority's stance possible.


Open Implementation Issues

In an introductory presentation on the decision and procedures to implement it, NLRB Region 2 Director Celeste Mattina suggested that several issues remain open in looking ahead to how new notice and posting requirements will be carried out.
Among the questions she noted were what to do if the union wants to have NLRB notice posted but the employer does not; what to do if the parties want to post their own notice, rather than the notice from NLRB; and what to do if posting the notice is not practical or feasible in certain workplaces.

Among the other issues noted by Mattina was what would constitute adequate notice, including how long and where the notice must be posted and how NLRB would monitor the adequacy and sufficiency of the notice.

Also, it remains unclear at what point in time the 30 percent threshold must be computed, Mattina said, although she suggested that the board would probably rule that it must be 30 percent at the time the petition is filed.

The implementation details will raise a host of legal issues that will have to be decided, suggested Esta Bigler, director of the Cornell ILR labor and employment law program. "We'll continue to offer these forums as the details are fleshed out," she said.



By John Herzfeld