The default rule under current law is that a union needs the support of a majority of the employees it represents. If it has that support, the employer will be required to recognize and bargain with it. If it doesn’t have that support, no obligation typically exists.

As an administrative agency, the NLRB can set rules in two ways. It can rule on specific cases that come before it, thereby setting out rules of law that apply in similar circumstances. It can also engage in rule-making, issuing rules of general application. The NLRB has traditionally relied heavily on deciding cases, and has only rarely issued administrative rules.

In 2007, however, a group of unions filed a petition with the NLRB asking that it issue the following administrative rule:

Pursuant to Sections 7, 8(a)(1), and 8(a)(5) of the [National Labor Relations] Act, in workplaces where employees are not currently represented by a certified or recognized Section 9(a) majority/exclusive collective-bargaining representative in an appropriate bargaining unit, the employer, upon request, has a duty to bargain collectively with a labor organization that represents less than an employee-majority with regard to the employees who are its members, but not for any other employees.

Another group of unions filed a similar petition in 2008. Both petitions followed a 2006 memorandum from the NLRB’s General Counsel (the "prosecutor" of violations under federal labor law) that determined that a union needed to show majority support before there was any obligation to bargain with it.

If the NLRB were to issue a rule like the one proposed, it would fundamentally alter the accepted approach to union organizing. If a small group of employees wanted to bargain with the employer, the employer would have to bargain with them, no matter how few employees there were.

Fortunately for most employers, the NLRB has not to date taken any action on this issue. Indeed, the NLRB only had two members for a 27-month period, and so couldn’t take any action on administrative rulemaking. That barrier to action went away earlier this year, with recess appointments of two new members. With four of five spots on the Board now filled, it could vote to issue a notice of proposed rulemaking in response to the unions’ petitions.

In fact, just recently, a group of professors, led by Charles Morris who has written extensively on the issue of minority unions, filed an unsolicited amicus brief with the NLRB. The brief, which supports the rulemaking petition, asks the NLRB to proceed with rulemaking, and lays out an extensive legal argument in support of the legality of the proposed rule.

Labor professionals should monitor NLRB actions in this area, particularly looking for the notice of proposed rulemaking on this subject. If one is issued, certain employers or employer groups may want to submit comments on the proposed rule. In the meantime, labor professionals should consider how the issue of minority union bargaining could affect the workplaces for which they are responsible.