BREAKING: If Employer Commits Unfair Labor Practice Before Union Election, Union Is Automatically Recognized

In a total game-changer, the NLRB has ruled today that, where an employer commits unfair labor practices before a union election, the union is automatically recognized and the employer must bargain. 

It doesn't appear to apply to every unfair labor practice in every election. But it will force employers to behave better before union elections or risk having the union automatically recognized. Here's a summary:

• It applies where a majority of employees have said they want the union to represent them and the employer either challenges the union majority and demands an election.
• It applies if the employer refuses to bargain without filing a petition for an election and challenges the election due to unfair labor practices.
• It applies if the union has filed a petition for an election.
• If the employer commits an unfair labor practice that requires setting aside the election, the employer will be subject to a remedial bargaining order.
• Employers are no longer allowed to frustrate the election process.
• If the employer interferes with the election process,  NLRB will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer.
• "Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way."

Here's what NLRB said about the new standard:

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 promptly139 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).140 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. In order to reconcile the provisions of Section 8(a)(5) and Section 9(a), which require an employer to recognize and bargain with the “designated” majority representative of its employees, with the language of Section 9(c)(1)(B) granting employers an election option, 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. Thus, this accommodation of the Section 9(c) election right with the Section 8(a)(5) duty to recognize and bargain with the designated majority representative will only be honored if, and as long as, the employer does not frustrate the election process by its unlawful conduct. As the Supreme Court observed in Gissel, Section 9(c)(1)(B) was not intended to confer on employers “an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.” 395 U.S. at 599. If the employer commits unfair labor practices that invalidate the election, then the election necessarily fails to reflect the uncoerced choice of a majority of employees. In that situation, the Board will, instead, rely on the prior designation of a representative by the majority of employees by nonelection means, as expressly permitted by Section 9(a), and will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer. 

Our focus, then, is on the unlawful conduct of the employer that prevents a free, fair, and timely representation election. Given the strong statutory policy in favor of the prompt resolution of questions concerning representation, which can trigger labor disputes, we do not believe that conducting a new election—after the employer’s unfair labor practices have been litigated and fully adjudicated – can ever be a truly adequate remedy. Nor is there a strong justification for such a delayed attempt at determining employees’ free choice again where the Board has determined that employees had already properly designated the union as their majority representative, consistent with the language of the Act, before the employer’s unfair labor practices frustrated the election process. Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way.

An employer that refuses to bargain without filing a petition under Section 9(c)(1)(B) may still challenge the basis for its bargaining obligation in a subsequently filed unfair labor practice case. However, its refusal to bargain, and any subsequent unilateral changes it makes without first providing the employees’ designated bargaining representative with notice and an opportunity to bargain, is at its peril.

This will make it much easier for workers who are organizing a union to have their union recognized. And it should stop much of the a**hattery that goes on during union-busting. 

Union yes!