NLRB Poised to Advance EFCA Through Reversal of Key Board Decisions

Author:Ms Amy Moor Gaylord, Staci Ketay Rotman and Jennifer A. Dunn
Profession:Franczek Radelet P.C.
 
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This week, the National Labor Relations Board (the Board) made two announcements, the results of which could further the administration's EFCA agenda without the need to pass legislation. Most prominently, the Board will revisit its 2007 Dana decision through review of two sets of cases that question when a union's support among employees can be challenged (Rite Aid Store #6473 / Lamons Gasket Co. and UGL-UNICCO Service Co. / Grocery Haulers Inc.). Dana has been widely cited as legal support for maintaining secret ballot elections in lieu of the union-supported card-check procedures in EFCA.

In Dana, the Board established that when an employer agrees to voluntarily recognize a certain union based on card-check, employees have the right to file a petition for a secret ballot election to decertify the union or in support of a rival union. This decision recognized the potential for union coercion in organizing campaigns and provided employees with a process for challenging a union's majority status through a secret ballot election. The Dana decision also mandated that an employer who recognizes a union through card-check must post a notice advising its employees of their right to petition for a union election. Employees then have the right to file a petition for a secret ballot election within 45 days after their employer recognizes the union. Since Dana was decided, the Board has held 54 secret ballot elections in accordance with Dana. In 15 cases—25 % of those elections—the employees have rejected the card check recognition, thus demonstrating the purpose of secret ballot elections.

On August 31, 2010, the Board invited interested parties to file briefs to give the parties and amici the opportunity to address the issues raised in Rite Aid Store #6473 / Lamons Gasket Co. and UGL-UNICCO Service Co. / Grocery Haulers Inc. which the majority stated raise...

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