1. Dana Corporation, 351 NLRB No. 28, 2007 Legal Issues – Should employees in a bargaining unit to be able to challenge an employer’s lawful voluntary recognition of a union based on an employer’s good faith belief, based on a card-based majority, that the employees in the bargaining unit wish to be represented by the union? – Should the Board modify its voluntary-recognition bar to permit, under certain circumstance, a challenge to a lawful voluntary employer recognition of a union? Fundamental NLRA Issues – How should NLRB balance tension between employee choice and industrial peace? 1

2. Previous Holding Keller Plastics, 1966 – Board will not permit a challenge to a voluntarily recognized union majority union for a reasonable period of time Generally no question of 8(a)(2) or 8(b)(1) – Permits unions to establish itself is a bargaining representative – Called the “Recognition Bar” 2

3. Dana Holding – Key Points Basic Holding – Recognition-Bar triggered if Ees in unit notified of right to file a decert or rival union petition within 45 days of notice of recognition No valid petition filed within 45 days of notice – Valid petition if 30% of unit employees sign Secondary Holding – Holding to be applied prospectively Avoidance of disruption of existing bargaining relationship – Existence of a pre-existing card check/neutrality agreement irrelevant to holding – Obligation to bargain commences immediately upon recognition 3

4. Majority Decision Rationale Legal – No statutory basis for voluntary recognition bar Industrial Relations – Card signings subject to group pressure – Card signings often accompanied by misrepresentation of card use misinformation or lack of information – Do ees know consequences of card signing when recognition voluntary? – Length of time of card signing means ees may change views – Rerun elections if post-petition electioneering violates laboratory conditions 4

5. Majority Decision Rationale (cont.) Differences Between Recognition Bar and Other Election Bars – Certified union after an election (Brooks) – No unfair labor practices by er (Franks Bros.) Recognition Bar postponed for 45 days, not eliminated – Stability still protected Er and union may still campaign against decertification petition 5

6. Dissent/Concurrence Object of NLRA is industrial peace Bargaining obligation based on 9(a) – majority status, not 9(c) – election results/certification – 9(a) does not say how majority status to be established Protects free choice of ees who signed cards Union needs time to establish itself Employers do not demand an election in order to avoid the associated expense and disruption Delays in establishing the bargaining relationship Puts the union under pressure to produce immediate results while er may be discouraged from being attentive to bargaining Allows minority of ees to delay will of majority No support for majority’s claims on why ees sign cards – Anti-union petitions also “public auctions” Standard remedies for 8(b)(1) or 8(a)(2) violations No need for a “second chance” for anti-union employees during a post- recognition card signing campaign 6

7. Other Major Holdings Voluntary recognition agreements based on majority support legal 8(a)(2) not implicated 7

8. Issues Is there/should there be a statutory policy of encouraging collective bargaining? Is the purpose of the NLRA to encourage industrial peace? 8