(This post clarifies some earlier points)
President Obama's labor board is now positioned to overturn the landmark 2007 Dana Corp. decision that allows workers to vote out via secret ballot a union that was recognized through the card check process.
This week the National Labor Relations Board (NLRB) announced it has merged two cases, which involve union lawyers with the USW and UFCW who are seeking to overturn Dana ruling that allowed for employees to demand a secret ballot election within 45 days after a union obtained monopoly bargaining status through a card check campaign.
In the USW case, the same Foundation attorneys who originally won the landmark Dana case are providing free legal assistance to Mike Lopez, an employee of Lamons Gasket Company in Houston, Texas, who filed the decertification petition when at least 30 percent of employees in the bargaining unit support the election. Consequently, there is good reason to doubt that the card check vote accurately reflected workers' support of the union.
Workers have already used the Dana precedent to demand secret ballot votes and kicked out unwanted unions. Here's a video report about some Dana Corp. employees in Albion, Indiana who did just that.
Many of the workers say they only signed the cards in response to union organizers visiting their homes not out of a genuine sense of conviction.
"While President Obama and members of Congress continue to push for a federal bill that would end the secret ballot in workplace unionization drives, an obscure federal agency stacked with union lawyers is poised to eliminate the private vote for workers who have been subjected to unreliable and coercive card check campaigns," Foundation President Mark Mix said.
One of the lawyers who agreed to review Dana is Craig Becker, a controversial recess appointee who is also former legal counsel to the SEIU and AFL-CIO. As a lawyer with the AFL-CIO, Becker cosigned a joint AFL-CIO/UAW brief in the original Dana case; yet he is now in a position on the quasi-judicial agency to overturn that very decision.
A similar challenge by union lawyers to Dana that has NOT been consolidated into this review involves Service Workers United, an SEIU affiliate. Earlier this year, Foundation attorneys asked Becker to recuse himself from cases involving SEIU local affiliate unions. Becker responded that he must only recuse himself from cases involving the national union. The Foundation's vice president and legal director Raymond LaJeunesse, Jr. sent a letter to Attorney General Eric Holder in August asking him to investigate whether Becker is in violation of his Obama Administration ethics pledge for participating in cases involving SEIU affiliates.
While that question remains unsettled, it appears Becker and the two other former union lawyers currently comprising a majority on Obama's labor board designed the review of Dana to exclude the pending SEIU case so Becker could avoid the ethics problem and still rule to overturn Dana.
It's also worth noting that it would be quite rare for the Board to decide important cases like this without at least three votes in the majority. If Becker were to actually recuse himself from the Dana review, the vote to overturn Dana would likely be 2-1 . This would explain why it's important for the union lawyer majority on the Board to keep Becker on the case.