On August 25, 2023, the 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 so without committing an unfair labor practice. The ruling, combined with the resuscitation of the Board’s 2014 “ambush election” rules, will make it more difficult for employers to respond to demands for recognition from unions claiming to have majority support from the employees at issue.

Quick Hits

• NLRB adopts a new standard that requires an employer to recognize and bargain with a union designated by the majority of its employees unless the employer invokes the Board’s jurisdiction to test the union’s majority status through an election.

• The Board did not reinstate the Joy Silk doctrine for union representation when there is evidence of majority union support.

• The Board’s new standard mandates a bargaining order if the employer commits an unfair labor practice that requires setting aside the election.

New Standard

Even though the Board fell short of reinstating the Joy Silk doctrine as requested by the NLRB’s general counsel, its newly adopted standard requires employers to recognize and bargain with a union that has demonstrated majority support from the employees at issue unless the employer elects to “promptly” file a petition for an election pursuant to Section 9(c)(1)(B) of the National Labor Relations Act, known as an RM petition, within two weeks after the union’s demand for recognition. However, if the employer invokes the NLRB’s jurisdiction and files an RM petition, but later commits an unfair labor practice that is not so minimal or isolated that it could not have affected the election results, the Board will set aside the election, dismiss the petition, and issue a remedial bargaining order requiring the employer to recognize and bargain with the union.

The decision comes a day after the NLRB revived its “ambush election” rules through the Board’s rulemaking authority. Those rules compress the time period between the time a representation petition is filed and the actual election to just a few weeks and make it more difficult for employers to take legitimate and lawful steps to educate their employees about the realities of unionization.

The Decision

In its decision, the Board largely affirmed the administrative law judge’s (ALJ) ruling, set aside the election results, and ordered the employer to recognize and bargain with the union. Still, the Board declined to reinstate the union-friendly doctrine stemming from its 1949 decision in Joy Silk Mills, Inc. Under the Joy Silk doctrine, employers were forced to recognize and bargain with a union if there was evidence that a majority of employees had selected the union as their representative unless the employer had good-faith doubt as to the union’s majority support.

Instead, the Board held that an employer does not violate the NLRA solely by refusing to accept a union’s claim that it enjoys majority support without an NLRB-conducted representation election. The Board stated that an employer may “test the union’s majority support or the appropriateness of the unit” through the RM petition process, but an employer who commits an unfair labor practice that could have affected the “laboratory conditions” preceding the election will face a bargaining order as the appropriate remedy – not a rerun election. The Board stated that such a ruling is necessary because the Board does not believe “conducting a new election—after the employer’s unfair labor practices have been litigated and fully adjudicated—can ever be a truly adequate remedy.”

In NLRB Member Marvin Kaplan’s dissent, he argued that the majority decision reached the incorrect result by changing the rules for all cases, even those with minor or nonexistent unfair labor practices.

Next Steps

The Board’s August 25, 2023 decision has significantly changed the process for union representation matters going forward. The Board’s new standard has placed greater responsibilities on employers faced with demands for recognition from unions attempting to represent their employees. The standard, when combined with the revived “ambush election” rules, also highlights the importance of union authorization cards (in both electronic and hard-copy forms) and the need for employers to proactively educate their workforces about unions and the potential legal implications of authorizing a labor organization to represent them for purposes of collective bargaining; namely, union representation without having the opportunity to vote on the issue in an NLRB-conducted election.