As has been anticipated in labor circles since President Obama took office, on Tuesday, the National Labor Relation Board (NLRB or “Board”) announced (pdf) that it would reconsider its decisions in Dana Corp., 351 NLRB 434 (2007) (pdf) and MV Transportation, 337 NLRB 770 (2002) (pdf), cases that address voluntary recognition agreements and successor employers, respectively. The five-member Board agreed 3-2 along party lines to consider two groups of consolidated cases that ask the agency to overturn in whole or in part its rulings in these two earlier decisions. NLRB Chair Wilma Liebman dissented in both cases when they were originally issued and the decisions are part of a larger group of controversial decisions issued by the Bush-era Board that organized labor is dedicated to revisiting.

In Dana Corp., the Board held that in the event an employer voluntarily recognizes a union based on the majority of signed authorization cards, employees must receive written notice of this recognition and of their right, within 45 days of the notice, to either file a decertification petition or support a representation petition filed by a rival union. If the notice is provided and the employees do not attempt to decertify the union within that period, the union’s majority status is presumed for a reasonable period of time to allow the parties to engage in collective bargaining. According to the Board’s notice and invitation (pdf) to file briefs in this matter, Dana “represented a major departure from prior law and practice respecting voluntary recognition agreements.” In reconsidering this case, the Board is seeking input on the following questions:

• What has been one’s experience under Dana and what have other parties to voluntary recognition agreements experienced under Dana?
• In what ways has the application of Dana furthered or hindered employees’ choice of whether to be represented?
• In what ways has the application of Dana destabilized or furthered collective bargaining?
• What is the appropriate scope of application of the rule announced in Dana?
• Under what circumstances should substantial compliance be sufficient to satisfy the notice-posting requirements established in Dana?
• If the Board modifies or overrules Dana, should it do so retroactively or prospectively only?

Parties involved in the second set of consolidated cases have similarly asked the Board to modify or overrule MV Transportation, a case in which the Board reversed the “successor bar” doctrine. Under this doctrine, a union would be given a reasonable period of time to bargain with a successor employer without having to face a challenge to its majority status. The Board in MV changed this doctrine, holding that “an incumbent union in a successorship situation is entitled to – and only to – a rebuttable presumption of continuing majority status, which will not serve to bar an otherwise valid decertification, rival union, or employer petition, or other valid challenge to the union’s majority status.” Among other questions posed to interested parties, the Board in its notice and invitation (pdf) to file briefs in this matter asks whether it should modify or overrule this decision, and whether and how MV Transportation otherwise applies in the “perfectly clear” successor situation.

As explained in the notices, those interested in filing briefs in either case must do so by November 1, 2010. Employers should expect the Board to take similar action with most if not all of the more controversial Bush-era rulings. It would not be surprising given the composition of the Board, and the criticisms of both Dana and MV Transportation, to see the Board significantly modify the law in these areas, if not even restore the law to its status prior to the issuance of these rulings. One of organized labor’s goals in its historic support for President Obama in 2008 was a labor-friendly NLRB. Now, we will see if organized labor achieves this goal.