Karen Michael is a special correspondent
the National Labor Relations Board Don’t Hold Back is making sweeping changes to a long-standing precedent to make unionizing in the American workplace easier and more assured, giving unions some extra reason to celebrate this Labor Day.
Last month, the NLRB issued a decision that the federal agency described as “a new framework for determining when employers are required to bargain with unions without representative elections. The new framework will give effect to employees’ right to bargain through representatives of their choice and improve the fairness and integrity of board elections.”
Previously, an employer could voluntarily recognize a union if at least 50% of workers signed authorization or petition cards. Alternatively, if at least 30% of workers in a bargaining unit sign authorization cards or a petition seeking to join a union, the union can petition the NLRB to hold a secret ballot election. If the union wins the election, the union will be certified by the NLRB and the employer will have to negotiate with the union.
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Now, the burden falls largely on the union.
According to a press release and the decision, employers must negotiate immediately with unions when requested by a union representative, or file an immediate election petition known as the “RM Petition.”
Unless an RM petition is filed, based on the resolution, the company must recognize the union if at least half of it signs the union cards or the petition, or perhaps based simply on a claim of majority support. The union is not required to seek elections.
If an RM petition is filed within two weeks by the employer, there will be a secret ballot.
But under the new rules, according to the board’s press release, “(if) an employer seeking an election commits any unfair labor practice that would require the election to be overturned, the petition will be denied, and — rather than rerun the election — the board will order the employer to recognize trade union and negotiate with it.
Previously, it was the specific and most egregious unfair labor practices during elections that required the issuance of bargaining orders.
Because everything will move quickly and it is easy to get stuck, every private sector business owner must be prepared.
As the board stated, “The revised framework represents an effort to improve employees’ right to bargain through their chosen representative, recognizing that employers have the option of enacting a legal provision that allows them to pursue board elections. When employers pursue this option, the new standard will enhance the environment fair elections by more effectively discouraging employers from committing unfair labor practices.
The Chairman of the Board of Directors stated: “The Cemex decision reaffirms that elections are not the only appropriate path to obtaining union representation, while also ensuring that when elections are held, they must take place in a fair electoral environment. Under Cemex, the employer is free to use election procedures The board of directors, but it is never free to abuse it – it’s that simple.
In the Cemex case, the board required Cemex to immediately recognize and negotiate with the union based on its new standard after finding that the company committed more than 20 instances of “objectionable and unlawful misconduct during the critical period between filing the petition and the election.”
Virginia remains a “right-to-work” state, meaning Virginia workers have the right to work without being required to join a union as a condition of employment.
This does not mean that the union will not come to your workplace. The NLRB will now issue ready bargaining orders – so employers need to be prepared.
The NLRB enforces the National Labor Relations Act, a 1935 federal law that gives employees working in the private sector the right to form or join unions; engage in protected and coordinated activities to address working conditions; or refrain from these activities. This only applies to private sector employers, with limited exceptions, including manufacturers, retailers, private universities and healthcare facilities. Workers who work for federal, state, or local governments are exempt from the law.
More information can be found at NLRB.gov.
Karen Michael is an attorney, president of Richmond-based Karen Michael PLC, and author of Stay Hired. It can be accessed at Stayhired@stayhired.net.