28 August 2023

NLRB Decision Makes Union Organizing Without an Employee Election Much Easier

For decades, the National Labor Relations Board has recognized the secret-ballot election as the preferred method for employees to determine if they desire union representation.  That changed last week, with the Board making it easier for unions to secure recognition based purely on union authorization cards and a simple demand for recognition.

On Friday, the Board issued its decision in Cemex Construction Materials Pacific, LLC, easing unions’ paths to representation. Cemex overruled over 50 years of precedent and revived a modified version of a 1949 standard on union recognition.  Under the new standard, once a majority of employees in a proposed bargaining unit sign union authorization cards and the union demands recognition, the employer must either recognize the union, or file a petition within two weeks testing the union’s majority status or the appropriateness of the unit through an election.

Here is a quick summary of how the Board’s new rule will operate:

  • An employer now violates the NLRA if it refuses to recognize a union in response to a demand from the union claiming that the union has secured majority support among an appropriate group of employees (typically done through union authorization cards).
  • This general rule applies unless an employer promptly files a petition for an election with the NLRB, known as an RM petition. To be timely, that petition generally will need to be filed within 2 weeks of the union’s demand.
  • If an employer timely files an RM petition and prevails in a secret-ballot election, that employer may still have a bargaining obligation imposed on it by the NLRB. In stark contrast to the prior standard, if the employer commits unfair labor practices during the “critical period” (defined as the time between the filing of an election petition and the election), there will no longer be a re-run election. Instead, the NLRB will impose a bargaining order when the employer commits any unfair labor practice(s) unless the violation(s) are “so minimal or isolated that it is virtually impossible to conclude that the misconduct could have affected the election results.”
  • If an employer fails both to file an RM petition and refuses to recognize the union in response to the demand, the NLRB will find that the employer has committed an unfair labor practice and impose a remedial bargaining order unless the employer can prove that the union lacked majority support.

The Cemex decision will make it easier for organized labor to unionize workforces without an election and will likely result in many more NLRB orders imposing bargaining obligations on employers who request and prevail in secret-ballot elections.  This is because many unfair labor practice allegations often turn on detailed facts, subjective interpretations of policies or conduct, or credibility determinations.  Moreover, existing Board precedent does not require actual evidence connecting an unfair labor practice to the employees’ decision in how they vote during an election.  Put simply: as the NLRB’s dissenting member observed, the standard for an unfair labor practice potentially to impact election results will be very easy for unions to meet.  Nearly any employer misstep may suffice.

For organizations who value direct employee relationships and who prefer to remain without a union, we strongly recommend that you examine closely your employee engagement efforts and communications strategies.  We also recommend that you consider training supervisors on union organizing tactics, the meaning of union authorization cards, what to do if they receive a demand for recognition, the heightened scrutiny that will accompany this new rule, and how supervisors and managers can reduce some of these new risks presented during a union organizing drive.