The National Labor Relations Board’s general counsel recently published a memo, along with other resources, to clarify parts of the Board’s recent decision dealing with union organizing demands for bargaining orders.¹ The memo is truly two memos in one: one above the line, one below it. Above the line, in the body text, the memo primarily reiterated the Board’s new standard. That standard expanded the use of so-called bargaining orders. The footnotes do the real work, however, answering many questions that were left unanswered by the Board’s decision. They address how unions can demand bargaining, what kind of misconduct will trigger a bargaining order, and how employers can challenge union-proposed election units. While many questions are still unanswered, the memo offers some additional clarity, at least as to how the general counsel reads the Board’s decision.  

What did the Board’s decision change?

Since at least the 1950s, the preferred way to test whether employees want to join a union has been to hold a secret ballot election.  Elections are conducted by the Board at the request of either a union or an employer. The requesting party was usually the union. The union would first approach the employer, claim to represent a majority of the employees, and demand to bargain. The employer then had a right to refuse. If the employer refused, the union would then ask the Board to hold an election. Secret ballot elections were a mechanism to enable employees to vote on union representation in an uncoerced environment.

The Board’s new standard changes that process. Now, when a union demands to bargain, the employer has two options:  (1) recognize the union and bargain, or (2) file its own petition requesting an election. The employer must make that request within two weeks of the union’s demand. If it fails to act quickly enough, the Board will order it to bargain without an election. If the employer asks for an election but commits election-related misconduct that would have previously resulted in a rerun election, the Board will set the election aside and order the employer to bargain.

That change left open questions. For example, how can a union make a bargaining demand? What kind of misconduct will trigger a bargaining order? If neither party asks for an election, how does the Board process a bargaining order?

What did the general counsel clarify?

The general counsel’s memo offers some answers. The memo runs six pages, most occupied by footnotes. The body text offers few new details and repeats the Board’s new standard, warning employers that they refuse to recognize unions at their peril. The footnotes, however, offer some genuinely new guidance:

• Bargaining Demands. First, the memo clarifies that a demand for recognition need not come in any special form and may even be conveyed verbally. No magic words are needed. A union can advise any agent of the employer that it has support from a majority of the employees and wants to bargain. And that agent need not be any specially designated person: it can be anyone acting on the employer’s behalf, even a lower-level supervisor or other agent of the employer. In fact, the union need not even communicate the demand directly to the employer; it can include the demand in an election petition by checking the right box on the petition form.

• Misconduct. Second, the memo clarifies that a bargaining order can be triggered by even a single “less serious” violation of Section 8(a)(1) or 8(a)(3) of the NLRA. If the employer discriminates against an employee for protected activity even once, the general counsel will seek a bargaining order. For other kinds of misconduct, the general counsel will take a more fact-dependent approach. She will consider how often the misconduct occurred, how many employees knew about the misconduct, how close it came to the election, how severe it was, and other relevant circumstances. In other words, the general counsel left herself room to judge the misconduct in context. 

The general counsel further advised that she will consider misconduct outside the election. The Board’s new standard applies to all misconduct in the “critical period.” The memo defines that period as the time between the union’s first bargaining demand and the election date. Any misconduct in that span is fair game—and could result in a bargaining order.

• Unit Scope. Finally, the general counsel’s memo offered a few more details about how employers can challenge the scope of the unit of employees sought by the union. Normally, when a union asks for an election, it will specify which employees it wants to represent. Those employees are the presumptive unit. Employers may disagree with the union’s proposed unit and offer their own unit definitions. But after the Board issued its new standard, it became unclear how an employer could challenge the presumptive unit. Could the employer file a petition based on the union’s proposed unit but simultaneously argue that the unit is inappropriate?

The answer, according to the general counsel, is yes. If an employer wants to challenge the union’s proposed unit, it should include the union’s proposed unit in its election petition. The employer should also describe its own proposed unit and offer evidence to show why the union’s proposed unit is inappropriate. While the Board will consider the employer’s position, the general counsel notes that the union’s proposed unit is the preferred one. The Board will ask only whether the union’s unit is an appropriate unit. If it is, the Board will order an election in that unit, regardless of the employer’s objection.

What happens now?

The general counsel’s memo highlights the complex issues employers are now facing. Questions remain about how the Board’s new standard will work and court challenges to the new standard have been filed, with more surely to follow. It is still unclear what types of employer conduct will trigger a bargaining order (other than Section 8(a)(3) violations where it is alleged that an employer discriminated against employees because of their union activities).  For example, would an unlawful handbook policy result in a bargaining order, even if the policy had not been enforced?

Employers should prepare as much as possible. The new Board standard, coupled with other pending changes to Board election procedures, effective in late December 2023, will restrict the flexibility of employers to react in real time. Employers should work closely with experienced labor counsel to develop a gameplan.