As expected, the National Labor Relations Board (NLRB) is swiftly implementing its new standards governing union elections and bargaining orders under the groundbreaking Cemex decision. We discussed Cemex and the new standards in our blog post on September 7, 2023.

An administrative law judge (ALJ) has already issued the first bargaining order implementing the new standards (I.N.S.A., Inc., Case 01-CA-290558, September 21, 2023 (ALJ decision)). The union lost the election, which after voter challenges were partially resolved, resulted in 11 votes for the union, 17 votes against, two unresolved challenged votes, and eight unreturned ballots. The union filed objections to the election and several unfair labor practice (ULP) charges against the employer. The cases were consolidated for hearing, and the ALJ found that the employer had committed several unfair labor practices during the “critical period” before the representation election.

Then, consistent with Cemex, the ALJ ordered the employer to recognize and bargain with the union as the employees’ exclusive representative. As explained in our earlier blog post, the old standard would typically result in a rerun of the election, and a bargaining order was considered an “extraordinary remedy” only available when the employer’s actions during the election were flagrant, intentional, and made a fair election impossible. While subject to exceptions and review by the Board, we expect the Board will adopt the ALJ’s decision.

The ALJ determined that the case met all the requirements for a bargaining order under the new standard laid out in Cemex:

1. The union proved majority support among the bargaining unit before the election, providing a petition asking for union representation signed by 20 of 28 unit members and authenticating such signatures by testimony at the hearing.
2. The employer had rejected the union demand for recognition.
3. The employer had committed violations under section 8(a)(1) interfering with the exercise of protected rights, Section 8(a)(3) through selective application of rules and discipline to union proponents, and Section 8(a)(5) by failing to bargain in good faith with the employer.

The employer violated Section 8(a)(1) by (a) soliciting grievances, (b) implied promises of increased benefits and improved terms and conditions of employment if employees refrain from union organizational activity, (c) prohibiting employees from talking about the union during working time while permitting employees to talk about other subjects, (d) prohibiting employees from engaging in union activity during working hours, as opposed to just working time, and (e) telling employees that talking about the union made other employees uncomfortable.

The employer violated Section 8(a)(3) by selectively enforcing work rules and policies concerning attendance, food and beverage consumption, access to the cash room, and mask usage policies and applying these rules more strictly against union proponents. The employer also disciplined or discharged employees because of their union activity in violation of Section 8(a)(3).

Several of these violations are subjective in nature, such as implied promises of increased benefits and improved terms and conditions of employment. Other actions of the employer may seem appropriate, such as telling pro-union employees not to bother others who ask to be left alone. As this case illustrates, many employer statements and actions during the election period could run afoul of such poorly defined and increasingly union-friendly standards.

Key Takeaway

New standards now apply to union demands for recognition and elections and the remedy for arguably illegal conduct during elections. As a result, employer actions and responses to union organizing efforts must change dramatically from what was permitted in the past. As this case demonstrates, union organizers are now incentivized to engage in conduct that may trigger an employer response that may create a ULP. Doing so provides the union two ways of “winning” the election: either through a majority vote or through a successful ULP charge and subsequent bargaining order. Management should therefore be fully cognizant of (expanding) restrictions on employer actions and speech during the election period—all of which could result in a requirement to bargain. Here, although the union received far less than one-third of the employees’ votes, the union ultimately achieved its representative status.

We outlined various steps to take now and when faced with a union’s demand for recognition in our earlier blog post. If you have not yet done so, we recommend that you review those recommendations now. We also urge employers to seek legal advice when the union knocks.