The NLRB has issued a new significant set of pro-worker rules surrounding union elections and collective bargaining. In short: if a union has majority support by union cards, unfair labor practices by their employer will lead to the union being recognized and the employer will be forced to bargain with them. This primarily takes the form of an election being invalidated due to the unfair labor practices by the employer during the election period. However, based on the NLRB's graphic it seems it can also take the form of the form of the employer not recognizing the union, not filing a petition against the union as obligated, and then committing an unfair labor violation.
The NLRB writes in its press release that:
Under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have 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—rather than re-running the election—the Board will order the employer to recognize and bargain with the union.
They do also note that the new standard is a compromise from the historical Joy Silk standard—that standard was stronger, and required an employer "to bargain with a union unless it had a good-faith doubt of the union's majority status."
In legal terms, as established by the case Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters1, here's what's changed:
Under the standard we adopt today, an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).
Section 9(c)(1)(B) of the Act grants employers an avenue for testing the union’s majority through a representation election if the Board, upon an investigation and hearing, finds that a question of representation exists.
[...]we conclude that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union’s majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by the union.
However, if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order.
-
Cases 28–CA–230115, 28–CA–235666, 28–CA–249413, 31–CA–237882, 31–CA–237894, 31–CA–238094, 31–CA–238239, 31–CA–238240, and 28–RC–232059.