A Double Whammy from NLRB Completely Overhauls How Unions Organize — Is Your Business Up To Speed?

08.28.2023

The political tides of labor law are moving quickly.  President Biden has proclaimed himself the most pro-union President ever.  The President’s appointees at the National Labor Relations Board (NLRB) have incrementally announced policies and rulings advancing changes and expansion in employee rights, while scaling back employer rights from rulings in the past Administration.

We find ourselves in a “hot labor summer” of strikes at levels not seen in decades.  And labor activity in industries historically not interested or involved in labor activity.  These labor actions inspire employees and unions in even more settings to pursue their goals in ways employers may view as confrontational, but with the protection of the labor laws.

On August 24, NLRB went final with changes to “representation case” rules which will affect the election process in which employees vote over union representation.  After the Obama Administration sped up the election process and took steps to limit employers’ ability to challenge election petitions or to communicate with employees about their position on labor issues, the Trump Administration restored standards which resembled how NLRB had previously done business, including rights to hearings before elections and time periods which were not an emergency rush to a vote, but rather one in which all sides had the opportunity to state their position and prepare for a vote.

The revised election rules which went final August 24 will take effect in late December 2023.  In sum they will return to the rushed scenario under Obama NLRB rules. Those rules established a set of procedures some referred to as “Ambush Elections.” Employers’ ability simply to prepare themselves for a workplace election or to communicate with the workforce about what was happening was compromised. At the same time, the rules compromised employee privacy by requiring disclosure of a broad range of employees’ personal contact information to the organizing union.

The day after the announcement of final revised election case rules, August 25, NLRB announced its ruling in the Cemex Construction Materials Pacific, LLC case.  That case involved a mix of unfair labor practice allegations and an election petition.  Numerous allegations were made that the employer engaged in acts of interference with protected rights and anti-union discrimination against employees.  The NLRB also prosecuted an allegation that the employer’s conduct amounted to an unlawful refusal to bargain with the organizing union.  The basis for that argument was a ruling from decades ago, Joy Silk, suggesting that an employer should be required to recognize and bargain with a union which had established majority support through authorization cards, even in the absence of an NLRB election, where the employer did not comply with the labor laws.  Certainly NLRB has in some limited instances sought “bargaining orders” based on authorization cards where an employer’s unfair labor practices arguably prevented a fair election from occurring (based on a U.S. Supreme Court ruling known as Gissel Packing). 

With the Cemex ruling, NLRB has flipped the organizing process.  Using Joy Silk as a platform, and claiming the failure of Gissel Packing bargaining order efforts, the Board panel’s majority established a new framework.  Essentially unions will be able to rely on authorization card majorities to demand recognition and bargaining without an election.  The burden will shift to the employer to either recognize and bargain with the union or to file an election petition at NLRB.  Any misconduct by the employer risks invalidating the election process and causing the election process to conclude.  In that event, the employer must bargain with the union based upon the majority having signed authorization cards.  And the union will enjoy the full protection of a bargaining relationship and related duties under the National Labor Relations Act.

This new Cemex standard ultimately removes the need for unions to file election petitions. If an election petition is filed, the election process will move swiftly and with less sensitivity to issues that might be raised in response to the election petition.

Employers should expect that unions will gather cards and present them to employers when the unions feel ready to make their recognition demand.  Often this is at times unions view employers as vulnerable, such as during a period of change or challenge and when an employer may be most easily pressured into accepting the arrangement. While recognition demands in recent decades have served as a precursor to a union filing an election petition, employers should expect that will not likely be the case anymore.  If NLRB blesses card-based demands in this fashion, the time and effort of an election campaign would viewed as slower and prejudicial to the organizing effort.  In sum, why would unions want or need a vote?

Unions will likely feel encouraged to challenge any potential issue with employer communications and actions as an unfair labor practice by filing a charge with NLRB.  It’s always been easy to file a charge, as it’s a one page form which can be pulled from www.nlrb.gov, filled out and electronically filed to start a government investigation of the accused employer.

Employers faced with recognition demands may feel compelled to seek a secret ballot election, but if unions can scuttle that with a charge filing and evidence of an alleged unlawful statement or act, NLRB will likely not be inclined to proceed to an election.  As such, the NLRB rule changes and Cemex ruling together provide unions a clear path to the bargaining table to pursue agreement on wages, hours, working conditions, and other provisions typically found in a collective bargaining agreement on behalf of a newly organized unit of employees.

As NLRB continues to challenge employer communications, actions, and workplace policies, employers need to take steps to train management and stay legally compliant.  Staying in touch with employees is equally important to be aware of issues in the workplace.  With NLRB wobbling on the applicable legal standards, having a rule of law but also stating they want it to be something else, and regarding so many issues, it is a volatile time for labor law and one which will be hard to navigate for the foreseeable future.

The current NLRB policies and rulings will be enforced in future cases against a wide variety of employers nationwide.  The right to seek review in the courts, and the resources of affected employers to seek review of NLRB’s policies and actions, will of course vary from case to case. And they will depend on the details of each case.

Having decades of experience in working with employers on labor law matters and NLRB cases, our Labor Relations Team is uniquely positioned to assist employers with these and other labor matters.  If you have any questions, you are welcome to contact us.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. AALRR is not responsible for inadvertent errors that may occur in the publishing process. 

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