Reviving the Nonmajority Bargaining Order

<div> In 1969, the Supreme Court suggested that the National Labor Relations Board could remedy severe unfair labor practices by ordering an employer to bargain with a union that never enjoyed majority support. Yet since 1984, the Board has disclaimed any authority to issue such nonmajority bargaining orders, reasoning that they undermine the ability of employees to make free choices about union representation and violate the NLRA’s bright-line principle of majority rule. <br> <br> </div> <div> This article reevaluates both objections and makes the case for reviving the nonmajority bargaining order. When deciding whether to order an offending employer to bargain, the Board faces a dilemma. Issuing the bargaining order risks imposing a union on workers who do not want it, while refusing to issue the order risks leaving workers without the union they would have supported in the absence of the employer’s unlawful conduct. The conventional model of employee free choice evaluates this tradeoff at the moment the order issues; without any evidence of past majority support, the risk of imposing a union on an unwilling group appears unbearably high. What this picture misses, however, is that the risks are asymmetrically sticky. If the Board erroneously orders bargaining, its error will likely be reversed by employees decertifying the union. But if the Board erroneously refuses to order bargaining, that error will likely persist, as overcoming threats and retaliation to achieve unionization is a tall order. Nonmajority bargaining orders thus maximize employee free choice across time when unfair labor practices are sufficiently severe.&nbsp; <br> <br> </div> <div> Meanwhile, the principle of majority rule prevents employers from pitting groups of workers against each other by recognizing minority unions. A careful examination of Supreme Court precedent and the NLRA’s text and legislative history reveals that neither supports majority rule as a constraint on the Board’s remedial power. And where an employer unlawfully prevents a majority from ever forming, a bargaining order is often the only way to vindicate employees’ statutory rights. </div>