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NLRB Announces New Standards for Union Organizing

Recently, the U.S. National Labor Relations Board (NLRB) adopted a new standard for union representation that requires an employer to recognize and bargain with a union that has demonstrated majority status unless the employer challenges the union’s support through an employer-initiated NLRB election and does this without committing any unfair labor practices.

Under this new standard, if a union presents an employer with a demand for recognition and authorization cards signed by a majority of employees, an employer must:

• Recognize the union as the bargaining representative or
• Promptly file a petition for an election (called a RM petition) to test the majority status or appropriateness of proposed bargaining unit within two weeks after a union’s demand for recognition.

Called the Joy Silk doctrine, this new standard institutes a new modification that facilitates card check recognition and lowers the threshold for when the NLRB will issue a bargaining order without holding an election. Previously, the Joy Silk doctrine required employers to recognize and bargain with the union when it had a majority of sign authorization cards unless there was a good faith doubt of authenticity of the cards. This good faith doubt has been removed. There are no more re-run elections and if an employer commits any violation during the critical period, the board may dismiss the RM petition and issue a bargaining order. Some of the unfair labor practices (ULP) that can warrant a bargaining order if occurred before, during, and after the election include:

• Threatening discipline (including termination) for placing pro-union stickers on personal equipment
• Instructing employees not to talk to union organizers on company time
• Threatening closure or movement of plant
• Using flyers, documents, and messages which have misrepresentations of consequences of strikes.

Employers should be knowledgeable and well trained for dealing with elections. Many elections take place without their knowledge so preparedness is crucial. Employers should also know about the two-week deadline to file an RM petition as well as focus on compliance. The new regulations place much higher stakes on the employer for following the rules and alleviate the risk of ULP charges.

ISSA will monitor this issue for any updates or relevant news.