Undercutting <i>Linden Lumber: How a Union Can Achieve Majority-Status Bargaining without an Election

This article undercuts Linden Lumber — the National Labor Relations Board’s (NLRB’s) rule which for almost half a century has permitted — indeed encouraged — employers to condition recognition and collective bargaining on a union’s winning what has become an unfair NLRB election, thus effectively denying the alternative binding effect of majority-based union-authorization cards. Relying on the Supreme Court’s affirmation of the Board’s decision in that case, erroneous conventional wisdom has treated this rule as the statutory interpretation of that Court, which would be unchangeable without legislation. A proper contextual reading of Justice Douglas’s majority opinion, however, definitely shows that this rule is but a second-step Chevron-type permissible construction of statutory language, not a mandatory reading of the National Labor Relations Act (Act). Accordingly, given the will by a subsequent Labor Board., the Linden rule could be replaced by a fresh and more sensible rule that would better conform to the “central purpose of the Act,” which, in the words of the Supreme Court, is “to protect and facilitate employees’ opportunity to organize unions to represent them in collective-bargaining negotiation.” This article proposes that the Board promulgate such a rule, which would require no further legislation.

That rule would simply provide that binding majority-based collective-bargaining can be established on the basis of a majority of union-authorization cards where the voluntary nature of each employee’s signature is confirmed by a witness whose signature, with date, also appears on that same card. Replacing Linden Lumber with this rule would restore what Congress intended.