One of the cornerstones of the current administration’s platform has been to “encourage and incentivize union organizing and collective bargaining” and to do so by “appoint[ing] members to the National Labor Relations Board (“NLRB” or the “Board”) who will protect, rather than sabotage, worker organizing, collective bargaining, and workers’ rights to engage in concerted activity.”
These aspirational visions (quoted from a Democratic National Committee statement) of propping up unions, even when the employees no long desire to be represented, are coming to fruition via action by the NLRB.
To that end, the NLRB recently issued a notice that it intends to rescind a 2020 rule, and in doing so will have the practical effect of making it difficult, if not impossible, to decertify a union. By way of background, the National Labor Relations Act not only gives workers the right to select and be represented by a union, but it also guarantees the right to remain non-union. The selection or rejection of union representation may be brought about in a number of ways, the most common of which is a secret ballot election conducted by the NLRB. The NLRB will certify the union as the employees’ representative only if a majority of the valid votes cast favor union representation.
Once certified, the union is guaranteed at least one year to obtain a contract without the prospect of being voted out. After the expiration of the first year, if the union fails to obtain a contract employees may...
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