Total Game Changer For Union Recognition

On August 25, 2023, the National Labor Relations Board (Board) issued a decision that completely changes the process for determining when employers are required to recognize and bargain with unions. This development makes it much easier for unions to organize workers without a representation election. The dissenting Board member, Marvin Kaplan, predicts that the Board’s “dramatic” and “deeply flawed” changes to Board law will result in “far fewer representation elections” and “many more card-based bargaining orders.”

The new framework, announced in the case of Cemex Construction Materials Pacific, LLC, makes several significant changes to the union recognition and representation election procedures that have been in place for over 50 years – all to the significant benefit of unions and at great cost to employees’ rights to secret-ballot elections.

First, the new framework puts the burden of seeking an election upon the employer, instead of the union. An employer faced with a union’s demand for recognition on the basis that a majority of employees in a bargaining unit support union representation can no longer insist that the union file an election petition with the Board. Now, the employer must either recognize the union upon proof of majority status and begin bargaining or “promptly” file an “RM election petition” with the Board for an election to test the union’s majority status and/or the appropriateness of the proposed bargaining unit.

Second, it completely changes the effect of unfair labor practices committed before the election. Now, if even one unfair labor practice is committed while an election petition is pending, the Board may dismiss the employer’s petition (throwing out the election results) and order the employer to recognize the union and bargain. The Board will not order a re-run election and will instead rely upon the union’s initial demand for recognition.

The effect of these two changes is to give near determinative weight to the union’s demand for recognition which is premised upon authorization cards signed by employees. The Board has long recognized that authorization cards are inferior to and less reliable than secret-ballot elections because employees may sign cards under pressure, without much thought or consideration, and/or without the opportunity for consideration of the employer’s position. Most union authorization card campaigns occur in secret and well before the employer even knows it is being organized. While secret-ballot elections are supposed to be foundational to workplace democracy, the Board’s new framework essentially eviscerates them as many employers will not be able to get through an election without some unfair labor practice charges being filed and processed by a Board that is all too ready to find them meritorious.

The Board announced that its new standard may be applied retroactively to pending cases, unless doing so would result in a “manifest injustice.“ While it is possible that the Cemex decision could be appealed to a federal circuit court and subsequent litigation may ensue over its application to future cases, employers need to take notice of this radical change in the law and plan accordingly.

It is more important than ever for employers to develop and maintain strong, positive employee engagement and retention programs so employees do not feel the need to turn to outside third parties, like unions, for help. Employers need to be prepared for union campaigns by educating employees on union authorization cards and training supervisors how to recognize and properly respond to union organizing activity. As even minor unfair labor practices could result in a bargaining order, such as maintaining overly broad work rules as liberally defined by the Board’s new Stericycle decision, employers should also undertake handbook and policy reviews.

KZA attorneys are well versed on Board law and are available to assist you with these proactive steps.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.