Ryan Funk Comments on Future of NLRB Bargaining Rule With the National Law Journal

In an article for the National Law Journal, labor and employment partner Ryan Funk commented on the future of a new National Labor Relations Board (NLRB) rule as it awaits a key decision from the U.S. Court of Appeals for the Ninth Circuit.  

The rule, which significantly eases the issuing of bargaining orders for unions, is being reviewed by the Ninth Circuit in Cemex Construction Materials Pacific v. NLRB. Under the Cemex decision, if a majority of employees sign authorization cards, the employer has two weeks to recognize the union or file a petition for an election. The publication noted that if the employer commits unfair labor practices serious enough to set aside an election, the NLRB can order negotiations rather than re-running the election. Funk said that the new requirements “changed the landscape” for labor relations. Funk noted that the main issue for the court is if the new rule complies with the U.S. Supreme Court ruling in NLRB v. Gissel Packaging, which allowed the NLRB to order negotiations if an employer committed unfair labor practices so egregious that they undermined the possibility of a fair vote. In oral arguments for Cemex, Ninth Court Judge Gabriel Sanchez said the Supreme Court has affirmed past alternative rules for bargaining orders and pressed Cemex on its view that the board now cannot deviate from the Gissel standard, Funk said. 

"It all comes down to whether Gissel left room for this new standard or not, because Gissel said there are some unfair labor practices that don't warrant a bargaining order and now the NLRB is imposing bargaining orders for lesser [unfair labor] practice violations," Funk noted. "I see that Sanchez latched on to that early, and that's going to be the most important question for the Supreme Court on review."