There are two recent and related developments at the National Labor Relations Board (Board) that non-union employers need to know about. These developments make unionization easier for employees, and require a re-thinking of time-tested employer strategies when facing an organizing drive.

The first of these concerns a newly adopted final rule that amends the Board's procedures governing representation elections. As the Board itself says, the "new rule will meaningfully reduce the time it takes to get from petition to election in contested elections and will expedite the resolution of any post-election litigation".

Under the new rule, pre-election hearings will happen sooner. Election information will be provided to employees quicker than in the past. Election related hearings are supposed to be more efficient. And, significantly, the rule seeks to ensure that representation elections are held more quickly.

The new rule will take effect on December 26, 2023.

The second key development is a new legal framework that outlines when employers may be required to collectively bargain with employee representatives, notably unions, even when there has not been a representation election in favor of the union.

For decades, unions have asked employers to voluntarily recognize them as exclusive employee representatives in the absence of an election. This usually happens when a union believes that it has gathered enough proof of majority support among employees, notably as evidenced by signed membership cards.

Employers in such cases have usually refused to recognize the union and get down to bargaining, instead preferring to put the union to the task of petitioning the Board for a representation election.

Since 1974, the Board (and the Supreme Court of the United States) have allowed employers to respond to a demand for voluntary recognition in this manner, finding that it does not violate the National Labor Relations Act (Act).

However, going forward, the Board has adopted a new standard, finding that the old one inadequately safeguarded employees' rights to organize and bargain collectively.

Now, an employer will be found to have violated the Act if it refuses to recognize a union that has been designated as a representative by a majority of employees in an appropriate bargaining unit unless the employer promptly files a petition with the Board to test the union's majority status through an election.

If an employer does not do so, it will be taking a big risk. The union may file an unfair labor practice charge and, in such a case, the employer will still be free to challenge whether the union in fact has majority support among employees. But if the employer fails, then its earlier refusal to bargain with the union will be found to have violated the Act. It is unlawful under the Act for an employer to refuse to bargain with a duly designated representative of a majority of employees.

Moreover, in developing this new standard, the Board has stated that intends to make remedial bargaining orders more readily available in order to deter employers from engaging in unfair labor practices in the lead up to any election (whether sought by the employer or union).

Going forward, if an employer acts in a way that makes a fair election unlikely, the petition for an election will be dismissed, there will be no new election and the employer will be subject to a remedial bargaining order, requiring it to negotiate with the union with a view to concluding a collective bargaining agreement. Such an order will refer back to the date on which the union demanded recognition from the employer. And any unilateral changes made by an employer to working conditions following the demand for recognition could be at risk.

Overall, with these new pro-union changes at the Board, non-union employers are facing increased risk of unionization. Accompanying this increased risk, employers will need to reassess how to respond to organizing drives, as the old ways of doing things are no longer valid. In addition, because of the increased risk of bargaining orders, special care has to be taken to avoid findings of unfair labor practices being committed in the lead up to any representation election.

If you have questions about how these changes may impact on your organization, please reach out to the author of this article.


Senior Partner

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