Dana Corp.

National Labor Relations Board - Board Decisions

Jun 7, 2004

341 N.L.R.B. 1284 (N.L.R.B. 2004)

DANA CORP. 1283
Dana Corporation and Clarice K. Atherholt, Peti-
tioner and International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, AFL–CIO

Metaldyne Corporation (Metaldyne Sintered Prod-
ucts) and Alan P. Krug and Jeffrey A. Sample,
Petitioners and International Union, United
Automobile, Aerospace and Agricultural Im-
plement Workers of America, AFL–CIO. Cases
8–RD–1976, 6–RD–1518, and 6–RD–1519
June 7, 2004
ORDER GRANTING REVIEW
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, WALSH, AND MEISBURG
The Petitioners’ Requests for Review of the Regional
Directors’ administrative dismissals of the instant peti-
tions are granted as they raise substantial issues regard-
ing whether the Employers’ voluntary recognition of the
Union bars a decertification petition for a reasonable
period of time under the circumstances of these cases.
The Petitioners’ motion to consolidate Cases 8–RD–
1976, 6–RD–1518, and 6–RD–1519 is also granted, as is
the Petitioners’ motion requesting that the Board solicit
amicus briefs on the issues raised in these cases.
In granting review, we emphasize that we have made
no judgments about the ultimate merits.
We acknowledge current precedent. But that prece-
dent is based upon a union’s obtaining signed authoriza-
tion cards from a majority of the unit employees before
entering into the agreement with an employer, while in
both of the instant cases, an agreement was reached be-
tween the union and the employer before authorization
cards, evidencing the majority status, were obtained. In
addition, we believe that changing conditions in the labor
relations environment can sometimes warrant a renewed
scrutiny of extant doctrine. As our colleagues acknowl-
edge, the change here is that the use of voluntary recog-
nition has grown in recent years. Although no party here
challenges the legality of voluntary recognition, the fact
remains that the secret-ballot election remains the best
method for determining whether employees desire union
representation.1 In such an election, employees cast a
secret vote under laboratory conditions and under the
supervision of a Board agent. By contrast, a card-signing
guarantees none of these protections. The issue raised
herein is the extent to which, if any, a voluntary recogni-
tion should be given election “bar quality.” The issue is
significant because “bar quality” means that, for some

1 Linden Lumber v. NLRB, 419 U.S. 301 (1974).
period, the employees will not be able to exercise their
Section 7 right to reject the union and/or choose a differ-
ent one.
The Kroger2 principle, cited by our colleagues, is wide
of the mark. The issue in that case is whether an em-
ployer violates Section 8(a)(5) if it dishonors an agree-
ment to recognize a union upon acquisition of majority
status. The instant cases present a far different issue.
The Employers have honored the agreement and have
recognized the Union. The issue is whether that recogni-
tion should operate as a bar to decertification petitions
filed by employees who were not parties to that agree-
ment.
Neither MGM,3 nor Seattle Mariners, 335 NLRB 563
(2001), cited by our colleagues, deals with the issue pre-
sented here. Both cases assume the very proposition that
is at issue here, viz., whether voluntary recognition of the
kind involved herein should give rise to a recognition
bar. More specifically, MGM, supra, assumes the recog-
nition bar principle, and then deals with the issue of
whether a reasonable period of time had elapsed after the
voluntary recognition. Seattle Mariners, supra, also as-
sumes the recognition bar principle, and then deals with
the issue of whether a 30-percent antiunion petition at the
time of recognition would preclude the recognition from
being used as a bar. Thus, neither case raises the thresh-
old issue of whether the recognition should be a bar in
the first place where, as here, it follows a card-check
agreement that was entered into when the union had no
majority support.
Our colleagues, citing the Board’s Rules and Regula-
tions, Section 102.67(c), say that there are no compelling
reasons for a grant of review. Fortunately, the section
sets forth what a “compelling reason” can be. One of
them is “a need for reconsideration of an important rule
or policy.” Precisely that situation exists here.
In sum, we believe that the increased usage of recogni-
tion agreements, the varying contexts in which a recogni-
tion agreement can be reached, the superiority of Board
supervised secret-ballot elections, and the importance of
Section 7 rights of employees, are all factors which war-
rant a critical look at the issues raised herein. At this
point, the only difference between our colleagues and
ourselves is that we believe the time is appropriate to
take that critical look and they do not.

MEMBERS LIEBMAN and WALSH, dissenting.
Voluntary recognition—and with it a temporary bar
against raising representation questions before the Board,
after recognition—have long been “a favored element of
2 Kroger Co., 219 NLRB 388 (1975).
3 MGM Grand Hotel, 329 NLRB 464 (1999).
341 NLRB No. 150
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
national labor policy.” NLRB v. Lyon & Ryan Ford, 647
F.2d 745, 750 (7th Cir. 1981), cert. denied 454 U.S. 894
(1981). In recent years, American labor unions have had
increasing success in organizing employees by winning
voluntary recognition from employers.1 Success, it
seems, has prompted greater scrutiny. Today, inexplica-
bly, our colleagues have cast a cloud over voluntary rec-
ognition, by granting review in this case. Decades of
Board and court precedent supporting voluntary recogni-
tion are now called into question, and unions, employers,
and employees are left in doubt, as the Board contem-
plates a radical change in the law. Because we believe
that the grant of review is unsupported—and, indeed,
highly questionable—we dissent.2
I. BACKGROUND
Each of the consolidated cases involves a decertifica-
tion petition filed just weeks after the Employer voluntar-
ily recognized the Union based on a card check con-
ducted by a neutral third party.
In September 2002, Metaldyne Corporation and the
Union entered into a neutrality and card-check agree-
ment. The Union then began an organizing drive and
solicited authorization cards from employees in an
agreed-upon unit of production and maintenance em-
ployees. On November 26, 2003, the Union notified
Metaldyne that it had the support of a majority of the unit
employees. On December 1, 2003, after a card check by
a neutral third party, the Employer voluntarily recog-
nized the Union as the exclusive bargaining representa-
tive of the unit. Only 3 weeks later, on December 23,
2003, the Petitioner filed a petition for a decertification
election. The petition was supported by a showing of
interest obtained after the grant of recognition.
On August 6, 2003, Dana Corporation and the Union
also entered into a neutrality and card-check agreement,
and the Union began soliciting authorization cards.
About November 26, 2003, the Union notified Dana that
it had the support of a majority of employees in the
agreed-upon unit. On December 4, 2003, after a card
check by a neutral third party, Dana voluntarily recog-
nized the Union. On January 7, 2004, the Petitioner filed
a petition for decertification election, again supported by
a showing of interest obtained after the grant of recogni-
tion.
In both cases, the Regional Director dismissed the peti-
tion. The Regional Director invoked the Board’s long-
established recognition bar doctrine, which provides that

1 See, e.g., David Wessel, “Some Workers Gain with New Union
Tactics,” Wall Street Journal (Jan. 31, 2002).
2 We join our colleagues only in granting the Petitioners’ request
that the Board solicit amicus briefs.
voluntary recognition of a union in good faith based on
demonstrated majority status will bar a petition for a rea-
sonable period of time. See Keller Plastics Eastern, Inc.,
157 NLRB 583 (1966); Sound Contractors Assn., 162
NLRB 364 (1966). The Regional Director found that a
reasonable time had not elapsed since recognition.
The Petitioner in each case filed a request for review,
arguing that the Board should completely abolish the
voluntary recognition bar, or, alternatively, modify it to
allow decertification petitions to proceed if they are filed
within the first 30 or 45 days after recognition.
The Regional Director properly dismissed the petition
pursuant to well-settled law. Review should be denied.
II. VOLUNTARY RECOGNITION IS A FUNDAMENTAL
ELEMENT OF NATIONAL LABOR POLICY: THE
RECOGNITION BAR DOCTRINE IS WELL SETTLED
AND SOUND
The overriding policy of the Act is “industrial peace.”
Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 38
(1987); Brooks v. NLRB, 348 U.S. 96, 103 (1954). “The
[NLRA] is designed to promote industrial peace by en-
couraging the making of voluntary agreements governing
relations between unions and employers.” NLRB v.
American National Insurance Co., 343 U.S. 395, 401
(1952). To that end, the Board “seeks to balance the
competing goals of effectuating free choice while pro-
moting voluntary recognition and protecting the stability
of collective-bargaining relationships.” Ford Center for
the Performing Arts, 328 NLRB 1 (1999).
Consistent with those policies, it is beyond dispute that
a union need not be certified as the winner of a Board
election in order to become the exclusive bargaining rep-
resentative. See NLRB v. Gissel Packing Co., 395 U.S.
575, 596 (1969). Instead, an employer may voluntarily
recognize a union that has demonstrated majority support
by other means, including—as in the present cases—
signed authorization cards from a majority of the unit
employees.3 The Board and courts have uniformly en-
dorsed voluntary recognition. See NLRB v. Lyon & Ryan
Ford, supra; NLRB v. Broadmoor Lumber Co., 578 F.2d
238, 241 (9th Cir. 1978); Terracon, Inc., 339 NLRB No.
35, slip op. at 5 (2003), affd. 361 F.3d 395 (7th Cir.
3 See Retail Clerks Local 455 v. NLRB, 510 F.2d 802, 807 fn. 19
(D.C. Cir. 1975) (legislative history indicates that Congress intended to
permit nonelection recognition procedures), on remand 219 NLRB 388
(1975); Rockwell International Corp., 220 NLRB 1262, 1263 (1975)
(employer’s “choice of a card check was not only reasonable but one
long accepted and sanctioned by the Board”); NLRB v. Montgomery
Ward & Co., 399 F.2d 409, 412–413 (7th Cir. 1968) (rejecting argu-
ment that card checks are too “informal and uncertain” a method of
selection to warrant a recognition bar); Snow & Sons, 134 NLRB 709,
710 (1961) (employer bound by its agreement to honor the results of a
card check), enfd. 308 F.2d 687 (9th Cir. 1962).

DANA CORP. 1285
2004) (noting the Board’s “established objective of pro-
moting voluntary recognition”); MGM Grand Hotel, 329
NLRB 464, 466 (1999) (“It is a long-established Board
policy to promote voluntary recognition and bargaining
between employers and labor organizations, as a means
of promoting harmony and stability of labor-management
relations.”).
In keeping with the policy favoring voluntary recogni-
tion, the Board held in 1966 that when an employer vol-
untarily recognizes a union in good faith based on a
demonstrated showing of majority support, the parties
are permitted a reasonable time to bargain without chal-
lenge to the union’s majority status. See Keller Plastics
Eastern, Inc., 157 NLRB 583, 587 (1966). The Board
stated:

With respect to the present dispute which involves a
bargaining status established as the result of voluntary
recognition of a majority representative, we conclude
that . . . the parties must be afforded a reasonable time
to bargain and to execute the contracts resulting from
such bargaining. Such negotiations can succeed, how-
ever, and the policies of the Act can thereby be effectu-
ated, only if the parties can normally rely on the con-
tinuing representative status of the lawfully recognized
union for a reasonable period of time.

Id. See also Sound Contractors Assn., 162 NLRB 364
(1966) (holding that rule of Keller Plastics applies in repre-
sentation cases). Consistent with the Act’s policy to effec-
tuate employee free choice, the voluntary recognition bar
extends only for a reasonable period, not in perpetuity.
MGM Grand, supra at 467. If a reasonable time elapses and
the parties have not yet reached agreement, the presumption
of the union’s majority status becomes rebuttable, and a
decertification petition is no longer barred.
The recognition bar doctrine is consistent with the
long-settled principle that “a bargaining relationship once
rightfully established must be permitted to exist and
function for a reasonable period in which it can be given
a fair chance to succeed. . . . After such a reasonable
period the Board may, in a proper proceeding and upon a
proper showing, take steps in recognition of changed
situations which might make appropriate changed bar-
gaining relationships.” Franks Bros. Co. v. NLRB, 321
U.S. 702, 705–706 (1944).
In the years since Keller Plastics, supra, the Board has
continually reaffirmed the recognition bar doctrine. See,
e.g., Seattle Mariners, 335 NLRB 563, 564 (2001);
MGM Grand, supra at 465–466; Ford Center for the
Performing Arts, supra; Rockwell International Corp.,
220 NLRB 1262, 1263 (1975). Furthermore, the appel-
late courts have repeatedly endorsed the principle that a
union that is voluntarily recognized based on a showing
of majority support enjoys an irrebuttable presumption of
majority status for a reasonable time after recognition.
See, e.g., Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243 (D.C.
Cir. 1994); NLRB v. Cayuga Crushed Stone, 474 F.2d
1380, 1383–1384 (2d Cir. 1973); NLRB v. Frick Co., 423
F.2d 1327, 1332 (3d Cir. 1970); NLRB v. San Clemente
Publishing Corp., 408 F.2d 367, 368 (9th Cir. 1969);
NLRB v. Montgomery Ward & Co., 399 F.2d at 411–413;
NLRB v. Universal Gear Service Corp., 394 F.2d 396,
397–398 (6th Cir. 1968).
In an attempt to distinguish the present case from prior
decisions applying the recognition bar, our colleagues
rely on the fact that the Employers and the Union entered
into the card-check agreement before the Union obtained
signed authorization cards from a majority of the unit
employees. Our colleagues state that Board precedent is
“based upon” a union’s obtaining signed cards from a
majority of unit employees before entering into an
agreement that the employer will voluntarily recognize
the union upon proof of majority status. That is not the
case.
First, the Board has applied the recognition bar in
cases like the present one, in which the employer and
union agree in advance—before the union obtains major-
ity support—that the parties will use a card check by a
neutral third party as a means of determining majority
support for the union, and that the employer will volun-
tarily recognize the union if the card check shows major-
ity support. See Seattle Mariners, supra; MGM Grand,
supra.
Second, although in some prior decisions the union did
in fact obtain authorization cards from a majority of the
unit employees before entering into a card-check agree-
ment with the employer, there is nothing in those deci-
sions to indicate that that fact was critical to determining
that the recognition bar should apply. See, e.g., Rockwell
International Corp., supra. Other decisions simply did
not specifically address whether the union obtained ma-
jority support before or after the parties agreed to volun-
tary recognition contingent on proof of majority status.
See, e.g., Keller Plastics, supra. Therefore, in such
cases, the decision certainly did not turn on that issue.
Third, agreements in advance to recognize a union if it
demonstrates majority support are hardly novel. The
Board has long permitted “after-acquired stores” clauses
in collective-bargaining agreements. Those clauses pro-
vide that the employer will recognize the union as the
representative of employees in stores acquired after the
execution of the agreement, and will apply the collective-
bargaining agreement to those employees, upon proof
that a majority of those employees support the union.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
See, e.g., Kroger Co., 219 NLRB 388, 389 (1975). The
Board stated in Kroger: “The Board has held that an
employer may agree in advance of a card count to recog-
nize a union on the basis of a card majority, and we can
perceive of no reason why it may not contract with the
union to do so in advance of the time the union has
commenced organization.” Id. (internal citation omit-
ted). Therefore, our colleagues’ attempt to draw a mate-
rial distinction between the present case and well estab-
lished Board precedent is unavailing.
The recognition bar is not only well-settled doctrine,
but also necessary to effectuate the Act’s policies of in-
dustrial peace and stability of labor-management rela-
tions. The beginning of a new relationship between a
union and an employer is a time of uncertainty for all
involved: the union, the employer, and the employees.
Negotiating a first contract involves unique issues that
are not necessarily present when the parties have a bar-
gaining history. See, e.g., N. J. MacDonald & Sons, 155
NLRB 67, 71–72 (1965) (initial contracts “usually in-
volve special problems, such as in the formation of con-
tract language, which are not present if a bargaining rela-
tionship has been established over a period of years and
one or more contracts have been previously executed”).
The parties need the opportunity to learn how to deal
with each other productively, and the employees need the
opportunity to determine if the union can represent them
effectively. The recognition bar allows the employees’
chosen union to “concentrate on obtaining and fairly ad-
ministering a collective-bargaining agreement without
worrying that, unless it produces immediate results, it
will lose majority support and be decertified.” MGM
Grand, supra at 466; see also Brooks, supra at 100 (not-
ing, in the context of a certification bar, that “[a] union
should be given ample time for carrying out its mandate
on behalf of its members, and should not be under exi-
gent pressure to produce hot-house results or be turned
out”).
Thus, for nearly 40 years, the Board, with court ap-
proval, has applied the recognition bar doctrine as an
appropriate balancing of the Board’s goals to maintain-
ing stability and industrial peace while protecting em-
ployee free choice. The Petitioners now seek to abolish
that doctrine.
III. THE PETITIONERS OFFER NO COMPELLING
REASONS FOR REVIEW
In granting review, our colleagues state that they have
made no judgment on the ultimate merits of the recogni-
tion bar doctrine, but simply want to take a “critical
look” at it. However, the Board will grant requests for
review only when “compelling reasons” exist. The
Board’s Rules and Regulations, Section 102.67(c). As
explained below, the Petitioners have offered no compel-
ling reasons to justify a “critical look” at the recognition
bar doctrine. Therefore, review should be denied.
The Petitioners contend that a secret-ballot election is
the most reliable method of measuring employee support
for a union and is, therefore, necessary to ensure free
choice. The Petitioners, however, ignore the indisputable
fact that the Act permits employees to choose a bargain-
ing representative by means other than an election. In-
deed, an employer’s duty to bargain under Section
8(a)(5) of the Act is subject, not to Section 9(c), which
deals with elections, but to Section 9(a),4 whose opera-
tive words “designated or selected” mean more than just
elections. And the Supreme Court has stated that
“[a]lmost from the inception of the Act . . . it was recog-
nized that a union did not have to be certified as the win-
ner of a Board election to invoke a bargaining obligation
. . . .” Gissel, supra at 596–597. As explained above,
voluntary recognition of a majority union is not only
permissible but encouraged.
The Petitioners also argue that employees may be “co-
erced” into signing authorization cards. However, as the
Petitioners are forced to concede, the Act provides re-
course for employees who believe their employer recog-
nized a union that lacked uncoerced majority support.
An employer’s recognition of a minority union, even if
done in good faith, violates Section 8(a)(2). The stan-
dard remedy for such a violation is to order the employer
to cease and desist from recognizing and bargaining with
the union until the union has been certified by the Board.
See Crest Containers Corp., 223 NLRB 739, 742
(1976).5
Thus, the Petitioners have failed to present compelling
reasons to grant review. Indeed, the reasons not to do so
are compelling. As explained above, voluntary recogni-
tion is “a favored element of national labor policy.”
Lyon & Ryan Ford, supra at 750. Abolishing the recog-
nition bar would make voluntary recognition meaning-
less. Employers have no incentive to recognize a union
if they know that recognition may be subject to immedi-
ate second-guessing through a decertification petition. In

4 Sec. 9(a) states that a representative “designated or selected” by the
majority of employees in a unit shall be the exclusive bargaining repre-
sentative. The Act does not specify the manner in which the union
must be chosen.
5 In their requests for review, the Petitioners claim that the Employ-
ers held mandatory meetings in which employees, either explicitly or
implicitly, were encouraged to support the Union. The Petitioners
concede, however, that they filed no unfair labor practice charges re-
garding the Employer’s recognition of the Union. Therefore, there
have been no charges—let alone any complaint by the General Counsel
or any determination by the Board—that the Employers violated Sec.
8(a)(2) by unlawfully assisting the Union or recognizing a union that
lacked uncoerced majority support.

DANA CORP. 1287
addition, abolishing the recognition bar would frustrate
the Act’s fundamental policies of furthering industrial
peace and labor relations stability. If a decertification
election is permitted immediately following recognition,
assuming the union prevails, the election “nevertheless
would have the deleterious consequence of ‘disrupt[ing]
the nascent relationship’ between the employer and un-
ion pending the outcome of the election and any subse-
quent proceedings.’” Seattle Mariners, supra at 565 (cit-
ing Smith’s Food & Drug Centers, 320 NLRB 844, 845–
846 (1996)).
The Petitioners’ alternative argument—that a petition
should be allowed within a 30- or 45-day window after
recognition—fares no better. Even if petitions are al-
lowed only within the first weeks after recognition, the
Employer’s incentive for voluntary recognition is never-
theless destroyed. The Petitioners contend that a petition
filed immediately after recognition will not have a desta-
bilizing effect on labor relations, because bargaining will
not even have begun. This argument ignores the very
purpose of the recognition bar: to allow the parties time
to establish their relationship and to bargain for an initial
agreement.
Therefore, the Petitioners have failed to give any com-
pelling reasons to abolish or modify the recognition bar.
IV. CONCLUSION
The issues raised by the Petitioners were settled 40
years ago. The recognition bar has stood the test of time.
To revisit it serves no purpose but to undermine a princi-
ple that has been endorsed time and again by the Board
and the courts. The Petitioners’ Requests for Review
should be denied.