Sometimes the posturing goes overboard, like here. The poster, a frequent source of pointed anti-EFCA, anti labor posts, does a disservice to the legitimate arguments against both. We have consistently written in favor of the NLRB's 2007 decision in Dana Corp, and its positive protections which avoid collusive imposition of a union on a workforce without a secret ballot election to determine majority status. We have argued Dana Corp would have been a better pattern for EFCA reform than EFCA. We still believe that to be true. But the reality is Dana Corp changed labor law, and the Obama Board's return to pre-Dana law of recognition (the old law was in place for 50 years) is less remarkable than the Dana decision itself. Posters who suggest otherwise are uninformed, or worse.

Earlier this month NLRB General Counsel Lafe Solomon urged threatened to sue four states unless they acknowledge their recently passed state laws requiring secret ballot elections are preempted by the NLRA. The four state's attorneys general have now responded. The point asserted is that the state laws are consistent with the NLRB's current law which also requires a secret ballot election when an employer refuses to recognize a union voluntarily. If that were the end of discussion, the AG's would be correct, but the head scratchers would ask what is the reason to pass such legislation. It is widely believed the legislation is a preemptive strike against the possibility the NLRB might change its rules, or Congress might pass something like EFCa. If such a conflict arose, it would be real and implicate federal preemption. Also, the state laws purport to regulate voluntary recognition, which likely will revert to pre-Dana law which guarantees no secret ballot election.

My students and readers of this blog know my support for Dana Corp's approach to ensure that employees' right to select union representation by a majority vote is protected against abuse when a union seeks to establish majority support by card check which would support voluntary recognition of the union by an employer. This poster gets the import of the case correct. However, the representation that undoing Dana Corp is a novel way to impose EFCA-esque card check recognition is at best erroneous, and perhaps pure political posturing, as is other political comentary in the post. Undoing Dana Corp would return the law of voluntary recognition to its decades long, stable procedures which existed before the Bush majority NLRB decided Dana Corp in 2007. We do not see this as positive change because it diminishes a protection for workers (much as we believe card check recognition in EFCA would do), but it is not a radical departure form prior Board law.

The NLRB has invited amicus briefs in cases involving voluntary recognition and a request to reconsider Dana Corp.