President Obama has nominated Wilma Liebman to chair the National Labor Relations Board.

Ms. Liebman and Peter Schaumber are the two current members of the five member NLRB. Obama soon will be filling the three vacancies on the Board, and when he does, several NLRB decisions of the last eight years are expected to be overturned. At least one such decision, Dana Corp., has a direct bearing on EFCA (disclosure: I was a member of the 3–2 majority that decided Dana in 2007; Ms. Liebman was in the minority).

Prior to Dana, a union voluntarily recognized by an employer pursuant to card check couldn’t be decertified (i.e., voted out by the employees) for a “reasonable period of time”, usually around one year. If the company and the union had reached a collectively bargained agreement within that time then an election could be barred for up to three years.

Dana holds that employees can now file a decertification petition within a 45-day window period after the employees are notified that their employer has voluntarily recognized a union pursuant to card check. The Board will then conduct a secret ballot election.

Obviously, one of the biggest concerns about EFCA is that its card check provision would essentially dispense with secret ballot elections. Under EFCA, the NLRB must certify a union if 50%+1 of the employees in the unit sign authorization cards.

Dana, however, may provide a mechanism for employees to get an election anyway, at least until the case is overturned. And it could take a while before the right case winds its way up to the Board for consideration (although it wouldn’t be surprising if one’s already in the pipeline).