NLRB Makes Union Representation Elections A Thing of the Past, Sort Of

Those who have worked in labor law are familiar with the union representation election process: the union collects signature cards from a group of employees seeking to be represented by that union, the union files a petition for representation, the election date is set, and after some campaigning by both union and employer, the election is held determining whether the union will be recognized as the collective bargaining representative for a group of employees.  Now, there have been different variations of this process over the years, with different boards from different administrations either complicating or simplifying the process.  However, a recent National Labor Relations Board (“Board”) decision is doing away with the election process, almost entirely.

Board Decision-CEMEX Construction Materials

Under the Board’s decision, employers are obligated to follow one of three paths after a union demands recognition on the basis that that a majority of employees in a bargaining unit have designated the union as their collective bargaining representative.

The easiest, but likely least-desirable path, is for the employer to immediately recognize and bargain with the union.  The Board’s expectation is that employers will do so within two weeks of the union demand for recognition.

The second, and most likely path an employer will take, is to file a petition for an election within two weeks of the demand, at which point the Board will set a date for the election and the parties may proceed through their typical buildup to a union certification election.  However, if it is determined that during the leadup to the election, the employer has committed an unfair labor practice that would require setting aside the election, the petition for the election will be dismissed, and the Board will ORDER the employer to recognize and bargain with the union (the over/under on percentage of elections where an unfair labor practice is alleged by the union currently sits at 98%).

The last option for an employer is to do nothing.  If the employer chooses this option, it will be hit with an unfair labor practice charge from the union based on its refusal to bargain.

None of these options are particularly good for an employer.  For those employers looking to avoid organization, it is necessary for them to file for the election on their own, and prove that the union does not have the support of at least 50 percent of employees, all while attempting to avoid allegations of an unfair labor practice.  If an employer chooses either of the remaining options, they likely end up in a bargaining situation with a representative that may or may not have the support of 50% of its employees.

We will keep an eye on how this rule develops.  We are likely to see far more unfair labor practice charges against employers, and increased organizing in the private sector (remember, NLRB only covers private employers).  If you, or your organization, need assistance in response to requests for recognition, contact Wiley Reber Law, for legal advice that works.