New bargaining rule penalizes union-busting efforts

Employers who commit unfair practice to affect union election will be forced to negotiate with union

New bargaining rule penalizes union-busting efforts

The National Labor Relations Board (NLRB) has adopted a new framework that will hit employers who go out of their way to set aside a union election among their workers.

Under the new framework, when a union requests recognition — with a majority of employees in an appropriate bargaining unit having designated the union as their representative — an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election.

However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and the board will order the employer to recognize and bargain with the union.

This will help employees’ right to bargain through representatives of their own choosing and improve the fairness and integrity of board-conducted elections, according to NLRB.

The new framework also acknowledges that employers have the option to invoke the statutory provision allowing them to pursue a board election. When employers pursue this option, the new standard will promote a fair election environment by more effectively disincentivizing employers from committing unfair labor practices, said the board.

This decision addresses “the two biggest problems with union elections right now: that they take too long and that employers actually have [an] incentive to violate the law during the campaign,” said Sharon Block, professor of practice and the executive director of the Center for Labor and a Just Economy at Harvard Law School, in a The Guardian report.

“This is an important decision in trying to make what I would believe is sort of a flawed law work as well as possible,” he said. “Addressing twin problems of the way and the incentive to unlawfully union-bust is incredibly meaningful. I think unions will be able to devote more resources to getting to elections quickly.”

Starbucks has been accused of resorting to union-busting efforts in the past.

New union framework detailed in Cemex decision

The new framework – which the NLRB detailed in its decision in Cemex Construction Materials Pacific, LLC – differs from the historical standard that required an employer to bargain with a union unless it had a good-faith doubt of the union's majority status.

“Today’s decision, along with the Board’s recently issued Final Rule on Representation, will strengthen the Board’s ability to provide workers across the country with a timely and fair process for seeking union representation,” said Lauren McFerran, NLRB chairman. 

“The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment. Under Cemex, an employer is free to use the Board’s election procedure, but is never free to abuse it – it's as simple as that.”

In the Cemex case, the NLRB found that the employer engaged in more than 20 instances of objectionable or unlawful misconduct during the critical period between the filing of the election petition and the election.

Accordingly, the Board found that the employer was subject to a bargaining order under both the Supreme Court’s decision in NLRB v. Gissel Packing Co. and under the newly announced standard, applied retroactively in this case.

In an Aug. 2 decision, the NLRB adopted a new standard around whether a company’s policies violate employees’ right to organize. Stericycle, Inc. and Teamsters Local 628 overrules Boeing Co. (2017), which was later refined in LA Specialty Produce Co. (2019), according to the board.

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