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Asked to settle union election challenge, 9th Circuit punts it back to NLRB

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in Employment Law,Human Resources

In a recent article, we explain how the National Labor Relations Board (NLRB) is struggling to clear a backlog of cases after a huge Supreme Court decision invalidating many prior decisions.

Now the 9th Circuit Court of Appeals has added to the NLRB’s burden by kicking a case back to the board rather than deciding it in court.

That’s good news for employers since it’s easier and cheaper to defend a case before the NLRB than it is to litigate a case in court.

Recent case: At issue in the case was a card-check provision in a construction industry collective-bargaining agreement. A “card check” is a voluntary method for determining whether a union enjoys majority status without having to resort to an NLRB-supervised election.

The union conducted the card check and claimed a majority of employees accepted it as its representative. However, the employers (this was a multi-employer contract) refused to accept the results.

The case worked its way through the federal court system before landing in the 9th Circuit Court of Appeals. That court was asked to determine whether the card check was valid.

Instead of deciding, it sent the case to the NLRB, reasoning that the board had the authority to determine whether the card check authorized the union to represent the employees and required the employers to bargain with that union. (International Union of Painters and Allied Trades v. J&R Flooring, et al., No. 08-17809, 9th Cir., 2010)

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