NLRB Delivers One-Two Punch: New Election Rules and Groundbreaking New Decision Change the Law to Help Unions Organize

By Jeffrey Hirsch, Peter Moser   September 1, 2023

Last week, the National Labor Relations Board (NLRB) took two major steps to change the legal landscape and help unions organize workers more easily.

  1. “Quickie Elections” Are Back. On August 24, the NLRB announced changes to its election procedures, most notably to shorten the timeframe for holding a union election after a representation petition is filed. The new changes mark a return to Obama-era procedures, and are intended to limit the amount of time an employer is able to communicate with its employees about the pros and cons of unionization. The NLRB framed its changes as procedural rather than substantive, allowing the agency to avoid the need to provide advance public notice or comment. The Final Rule will take effect on December 26, 2023, absent federal court intervention.
  2. Card Check Recognition?  The NLRB didn’t go quite so far as to completely supplant union elections with card check recognition, but the agency took a dramatic step in that direction on August 25 when it issued its decision in Cemex Construction Materials Pacific, LLC. In Cemex, the NLRB established a new framework for unions to obtain recognition. Now, as soon as a union requests recognition from the employer by claiming that the union enjoys the support of a majority of employees, the employer must promptly choose one of two paths: (a) recognize and bargain with the union, or (b) file a petition with the NLRB seeking an election. The second option must be exercised within two weeks of the union’s request, or else the employer becomes obligated to recognize and bargain with the union. Compounding the risks, the Cemex decision also establishes that if an employer seeks an election but commits an unfair labor practice (ULP), the NLRB may dismiss the election petition altogether and simply order the employer to recognize and bargain with the union without employees ever having the chance to vote. This type of “bargaining order” had historically been a rare and extreme remedy, as it deprives employees of the ability to express their choice in a secret ballot election; however, the NLRB now appears poised to use the remedy as a routine means of ensuring successful union organizing. To understand just how easy it is for almost any employer to be accused of a ULP (potentially triggering a “bargaining order”), one need look no further than the NLRB’s recent decision in Stericycle which we discussed here; under Stericycle, even commonplace handbook policies that are facially neutral—such as social media and cellphone policies—could be found presumptively unlawful if an employee could reasonably interpret them to have a chilling effect on labor law rights.

Conclusion

The Cemex decision makes it far more likely that a union organizing drive will result in an election, because a request for recognition by the union now puts the burden on the employer to either request an election or recognize the union; on top of this, the NLRB’s new procedural rules will ensure that elections happen very quickly.

The Cemex decision became effective immediately and may be applied retroactively to all pending cases. The new Final Rule, however, will not take effect until December 26, 2023.

Time will tell whether these pro-union new NLRB decisions and procedural changes survive judicial scrutiny (they surely would not survive a transition to a Republican presidential administration). For now, however, the changes are a stark reminder and strong motivation for employers to carefully review existing policies, procedures, and benefits. In light of Stericycle, employers should also review their handbook policies.

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For Question / More Information

To discuss how these recent NLRB changes affect your organization, and for assistance in reviewing and revising your workplace policies or handling a recognition request, please contact your HRW attorney:

 

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