This fall, the National Labor Relations Board (NLRB) overturned over a half century of precedent in ruling unions are allowed to require negotiations with an employer without a secret ballot vote.
The board issued a decision announcing a new framework for determining when employers are required to bargain with unions without a representation election. NLRB officials said the new framework will both bring about employees’ right to bargain through representatives of their own choosing and improve the fairness and integrity of board-conducted elections.
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. This is an employer-filed petition if the employer believes a union has lost majority support and the employer has a good faith doubt as to the union’s representative status.
James Foster, Jr., a labor attorney with McMahon Berger and a Missouri Chamber member, said what the NLRB created was a new test and process that doesn’t turn on proving that employers had a “good-faith doubt” that unions have majority support to require them to recognize and bargain with unions.
“Instead, when the union asks for recognition claiming the demand is based on a majority of workers support, the new framework requires employers immediately recognize a new union or promptly file for an election,” Foster said. “The employer is required to promptly file an RM petition with the NLRB upon a union’s request for recognition. Before this, unions filed over 95% of their own representation petitions with the NLRB. This turns that process upside down.”
Officials with the Missouri State Council for the Society for Human Resource Management said the law, “allows unions to trap non-union employers and force them to recognize a union in their workplace without their employees ever being allowed to vote.”