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 “substantial” issues concerning voluntary recognition under Dana. By overruling Dana through these two sets of cases, the Board will achieve what proponents of EFCA have failed to pass through Congress—elevating the use of card check to the status of a Board election.

While we will have to wait and see how the Board decides Rite Aid and UGL, its recent ruling in Independent Residences is a major victory for unions and EFCA supporters. In Independence Residences, Inc., the Board ruled that the results of a 2003 union election at a set of New York group homes for the developmentally disabled should stand, rejecting claims by the employer that a state law had made a fair election impossible. This decision resolved the oldest election case pending at the Board. The employer had argued that the union representation election should be set aside because a New York state law had unlawfully limited the employer’s right to communicate with its employees about the union campaign. The Board rejected the employer’s petition to overturn the election, even though under U.S. Supreme Court precedent the New York state law in question is preempted by the National Labor Relations Act because of the limits the state law imposes on employer speech and the debate over the pros and cons of union representation. This case effectively furthers Board Member Craig Becker’s stated goal of limiting employer involvement in union elections and other Board proceedings.