Generally, a private-sector employer that is not in the construction industry has an obligation to bargain with a union only when that union represents a majority of employees in the relevant unit. Sometimes the union is recognized voluntarily by the employer; sometimes they are certified by the National Labor Relations Board (“N.L.R.B.”), a federal agency. Either way, that union becomes the “exclusive bargaining representative” for covered employees. Now, though, employers may soon receive demands to bargain with unions that do not represent a majority of employees.
In the recent case of Children’s Hosp. of Oakland, 364 N.L.R.B. No. 114 (2016), the National Labor Relations Board held that an employer was required “to arbitrate pending grievances arising under an expired collective-bargaining agreement with the union that was party to that agreement, even if the union has been superseded by another union….” That part is important, but there was another piece of the case that may prove to be more difficult to implement.
In a concurrence, Member Hirozawa wrote with approval about a doctrine that many labor lawyers thought had been put to rest. He articulated the basis for an employer’s duty to bargain with a union on behalf of that union’s members, even if the union does not represent a majority of the unit employees. Noting that a covered employer’s statutory obligation to bargain is “subject to the provisions of” Section 9(a) of the National Labor Relations Act , he wrote, “I think it is also useful, however, to consider what the subject-to-Section-9(a) clause does not mean. It does not mean that for an employer to have a duty to bargain with a union on behalf of its employees, the union must be a Section 9(a) exclusive representative.”
That non-exclusivity doctrine, which had been argued by, among others, Charles Morris, a well-respected author and law professor, appeared to have been struck down for good after the N.L.R.B.’s Office of General Counsel issued an “Advice Memorandum” ten years ago. Now, though, Member Hirozawa’s concurrence has breathed into it new life, and Prof. Morris, sensing that the doctrine might once again be stirring, has posted a comment on the topic.
What does it all mean? It means that employers may soon be receiving demands to bargain from unions which concede that they represent only a minority of employees. How to respond depends, as always, on an assessment of each employer’s values, situation, goals, and options.
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