NLRB UPDATE: Key NLRB Precedents Likely to Fall Under Liebman Board - Part IV


Earlier this year, Ford & Harrison began our series NLRB Update, analyzing 10 critical decisions issued by the Bush-appointed National Labor Relations Board ("NLRB" or "Board") that likely will be overturned in the next few years if reconsidered by an Obama-appointed Board now chaired by Wilma Liebman. Member Liebman's new position as Board Chair is particularly important, as she issued dissents in most of the critical pro-employer decisions issued under the Bush-era labor Board, challenging the reasoning and conclusions reached by the Board majority. Careful analysis of Liebman's dissenting opinions in these major decisions provides a legal roadmap – charting the likely course the Liebman Board will take if it is able to reconsider these issues.

*Part I of this series analyzed IBM Corp., 341 NLRB 1288 (2004), concerning the representation rights of non-union employees.

*In Part II, we analyzed Guard Publishing Co. (Register Guard), 351 NLRB 1110 (2007), concerning the employer's right to restrict employee use of company e-mail to preclude union related communications.

*In Part III, we analyzed BE&K Construction Co., 351 NLRB 451 (2007), in which the Board held that an employer's unsuccessful but reasonably based lawsuit against a union does not constitute unlawful interference of Section 7 rights – even if the lawsuit has a retaliatory motive.

*In Part IV below, we analyze Dana Corp., 351 NLRB 434 (2007), in which the Board overruled forty-year-old Board precedent to hold that an employer's voluntary recognition of a labor union des not bar a decertification petition or the petition of a of a rival union filed within forty-five days of the voluntary recognition.

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