NLRB issues rule to radically change union organizing

On August 25, 2023, the National Labor Relations Board (NLRB) put forth a change to the law of union organizing not seen in our lifetimes. It paves the way for workers to organize without formal elections.

“It changes the landscape for employers when it comes to remaining union free,” said Daniel Barker, Attorney with Jackson Lewis and ABC of Wisconsin Labor Counsel.

The decision effectively adopted the principles of card check and it changes the way employers must respond to card checks.

In general, before August 26, 2023, employers would not be required to bargain with a union unless the union petitioned for and won a secret ballot election among a unit of employees.  Each side had a fair chance to have their voice heard before the employees voted in secret.  If either side broke the NLRB’s campaigning rules, the NLRB would simply order a new vote.

Now, a union can request recognition on the basis that a majority of employees in a bargaining unit supported the union — which can be done electronically — and the employer must then either recognize and bargain with the union, or promptly file a petition seeking an election. It essentially allows card check for union elections.

If the employer does not file a legal petition for an election within 14 days after a recognition demand, the game is over and the union wins.  There is election is needed and the NLRB would order the employer to bargain. If the employer does manage to get an election, then any unfair labor practice will also mean game over.

“It’s like sudden death overtime. No reruns. No do-overs,” said Barker. “The worst part is that something as simple as an overly broad confidentiality policy in an employee handbook may be enough trigger a bargaining order.”

It changes the landscape for employers when it comes to remaining union free.

The decision came one day after the NLRB announced a final rule reviving Obama-era regulations designed to speed up the union election process, another advantage to unions.

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