On August 25, 2023, the NLRB issued two critically important and pro-labor decisions that will make it much easier (and quicker) for unions to organize and unionize previously non-union employees. One will make it easier for unions to represent employees without an election among affected employees while the other will fast-track elections and give employers less time and opportunity to counter union representation efforts.
First, in Cemex Construction Materials Pacific, LLC, the NLRB announced a new and very union-friendly rule for determining when employers can be required to recognize and bargain with unions without a free choice representation election among affected employees. Overturning some 50 years of precedent, the Board issued a new standard under which an employer will be found to have violated Section 8(a)(5) and (1) by refusing to recognize a union that has requested recognition based on evidence of majority status unless that employer promptly (normally within two weeks) files with the NLRB its own election petition to test the union’s majority status or the appropriateness of the bargaining unit requested by the union. And even where there is an election, the Board held that if the employer commits an unfair labor practice that requires the setting aside of the election, the election petition (regardless of whether filed by the employer or the union) can be dismissed and the employer ordered to recognize and bargain with the union without any election among the affected employees.
On the same day, the NLRB finalized and issued a rule that will dramatically speed up traditional union representation elections. Under this new rule, once an election petition is filed with the Board, the deadlines for responsive filings and pre-election hearings will be much shorter and, once the Board has issued a decision and direction of election, Regional Directors will be required to schedule elections at “the earliest date practicable” (doing away with the 20 business day waiting period under the old rule). Also, as opposed to litigating issues on eligibility and which employees are covered by the union petition before an election is held, those issues will now be litigated and decided after the election is held. The entirety of this new rule is rather clearly aimed at fast-tracking the union election process and giving employers less opportunity to challenge union election petitions and to counter the organizing effort with their own employees.
Both of these decisions by the NLRB are quite obviously game changers when it comes to unionization efforts by organized labor. Employers faced with a recognition demand or a newly-filed union election petition will need to react very quickly and very carefully. For example, failure to request an election promptly after receiving a union recognition demand may result in mandatory recognition of the union without the normal employee free choice election. Likewise, employers faced with a union election petition need to be prepared for this new fast-track election process, whether that be the determination of pre-election issues or the holding of the election itself.
Finally, in either instance, employers opposing unionization will need to be exceedingly careful not to commit unfair labor practices during the pre-election period, as such unfair labor practices may result in the employer being ordered to recognize and bargain with the union without an election or any further proof of majority status on the part of the union.
In light of the need to respond quickly and carefully to either a union recognition request or a union election petition filed with the NLRB, an employer facing either of these scenarios should immediately contact counsel for guidance.
