The National Labor Relations Board has issued a groundbreaking decision that jettisons 50 years of established law to provide unions a more favorable framework to organize nonunion companies. On the heels of new rules reducing the time employers have to respond to union election petitions, the Board’s August 25, 2023 decision in Cemex Construction Materials Pacific, LLC (Cemex) is its latest action to facilitate union organizing.

In short, the Cemex decision places the onus on employers to “promptly” initiate the election process when presented with a demand for union recognition and makes any employer unfair labor practice taking place in the run-up to the vote a likely basis for an affirmative bargaining order.

Background

Cemex involved a campaign by the Teamsters to organize several hundred drivers and driver trainees employed by Cemex across approximately 24 facilities in Nevada and Southern California. Cemex mounted a vigorous campaign to persuade employees to vote against union representation, which, according to the Board, included a host of unfair labor practices, including so-called “hallmark” violations such as threats of plant-closing. The company’s strategy appeared to pay off when a narrow majority of employees voted against union representation. However, the Teamsters filed a slew of unfair labor practice charges. An Administrative Law Judge (ALJ) found that the company had committed some 28 unfair labor practices but declined to issue an order requiring the company to bargain with the union. Instead, the ALJ ordered a re-run election.

The NLRB General Counsel filed exceptions to the ALJ’s refusal to issue a bargaining order. On review, the Board found that the ALJ had erred in refusing to issue a bargaining order under NLRB v. Gissel Packing Co., in which the Supreme Court affirmed the power of the Board to issue a bargaining order in cases where a union had obtained majority support and the employer had engaged in unfair labor practices which “have the tendency to undermine majority strength and impede the election processes,” such that it is not feasible to conduct a fair election.

Critically, however, the Board went further and announced a whole new framework applicable to union representation proceedings. Under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must do one of the following:

• Recognize and bargain with the union
• Promptly file an RM petition seeking an election

However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and — rather than re-running the election, the Board will order the employer to recognize and bargain with the union.

In announcing the new standard, the Board declined to revive the old Joy Silk Mills doctrine requested by the General Counsel, under which an employer was required to have a “good faith doubt” as to a union’s claim of a majority status as a condition of obtaining a Board-conducted election. As explained below, however, whatever comfort employers may draw from the continued availability of the Board’s election processes is chilled by the easy availability of bargaining orders as a sanction for employer unfair labor practices during the period preceding the election.

Key Takeaways

For the past 50 years, under the Board’s decision in Linden Lumber, an employer confronted with a union’s demand for recognition based upon signed authorization cards or some other evidence of majority support could decline to recognize the union, putting the onus on the union to file a petition to invoke the Board’s election machinery. In Cemex, the Board has flipped the script, placing the burden on employers to “promptly” file an election petition with the Board or face liability for failing to recognize and bargain with the union. In a footnote, the Board states that “promptly” ordinarily will mean within two weeks of the union’s demand for recognition. Historically, employers rarely filed election petitions with the Board, but this is likely to change going forward.

Perhaps more significantly, any employer unfair labor practice during the period preceding the election that previously would have resulted in a rerun election now will result in an affirmative bargaining order, provided the union had majority support in an appropriate unit at the time it demanded recognition. Member Marvin E. Kaplan noted in his dissent that under the Board’s existing caselaw, any unfair labor practice committed by an employer during the critical period will be grounds for setting aside an election unless it is “virtually impossible to conclude that [it] could have affected the results of the election.” Moreover, the Board’s recent decision in Stericycle requires employer work rules to be evaluated under an extremely strict standard that undoubtedly will result in many such rules being deemed unlawful. Consequently, Kaplan concludes: “it is virtually impossible for an employer not to commit a critical-period unfair labor practice that would require setting aside the results of the election, which means that it is virtually impossible for an employer’s RM petition not to be dismissed, for the employer not to be found to have violated Section 8(a)(5) and for a bargaining order not to issue..."

Conclusion

The day before Cemex issued, the Board announced rule changes concerning processing of election petitions that mark a return to the “quickie election” framework imposed by the Obama-era Board. Together with Cemex, these actions manifest the desire of the Board majority (two of whom are former union attorneys) and the General Counsel (a former union attorney) to reshape labor law to advance the interests of organized labor at the expense of employers and employees opposed to unionization. While these actions may not survive judicial review, for the foreseeable future, nonunion employers wishing to remain nonunion will be facing an increasingly difficult legal environment.

[View source.]