Board Drops “Due Process” Test For Union Mergers and Affiliations

October 13, 2007 by Beeson Tayer & Bodine

The Board in Kravis Center for the Performing Arts, 351 NLRB No. 19 (September 28, 2007), has dropped the “due process” requirement from its test for continuity of representation following union merger or affiliation.

The Board traditionally applied a two-part test to determine whether an employer was obligated to continue recognizing a union following the union’s merger or affiliation with another union. The Board required: (1) sufficient “continuity” in the identity of the union after the change; and (2) the affected employees be allowed to vote on the change – the “due process” prong of the test.

A 1986 Supreme Court decision held that unions could not be compelled to allow non-members to vote as part of the “due process” test, and threw into doubt the validity of the “due process” test in its entirety.

20 years later the Board has finally addressed the impact of that Supreme Court decision and concluded that its “due process” test is no longer valid. The test for continuity in union representation remains, but the Board will no longer look to the internal process by which the union made its decision to merge or affiliate. Of course unions that have a constitutional requirement that members vote on mergers must continue to permit member votes, but questions of compliance with such internal rules should not alone give employers grounds to refuse to recognize merged unions.

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