WARNING TO ALL PRIVATE NONUNION EMPLOYERS

In a crucial case for nonunion employers, the National Labor Relations Board (NLRB) has upended the rules governing how a workplace becomes unionized. Now, employers can be obligated to bargain based solely on a union claim of majority support.

Under new rules, union recognition is mandatory following a claim by a union of majority support, unless the employer petitions for an election within two weeks after the union makes its claim. The details are still murky on this new procedure because this dramatic rule change was announced in a decision and not through rulemaking. See Cemex Construction Materials Pacific, 372 NLRB No. 130 (August 25, 2023).

But the upshot is clear: no longer should a nonunion employer brush off a union demand for recognition.

Under the new rules, the nonunion employer must take action within a two-week deadline. This blog post outlines immediate steps that a nonunion employer should take when a union arrives and demands recognition.

Below we discuss the underlying rationale of the rule change, the old rule, the new rule, and our new advice.

The NLRB’s Thinking
To understand the rule change, it is important to understand the NLRB’s motivation in the Cemex case. Simply put, the NLRB is intentionally making it easier for unions to organize nonunion employers. The NLRB is no longer favoring elections as the primary means of unionizing a work force. It’s clear that the NLRB believes that it has been too difficult for unions to prevail through traditional elections. In the election process, employees can be fully informed in an open campaign about the pros and cons of unionization and make a private choice about whether to be represented. The NLRB recognizes that it is much easier for unions to gather employee signatures on authorization cards, allowing the union to then demand recognition.

Thus, the NLRB has now made signed authorization cards the preferred method for unions to gain recognition with this decision. Going forward, an election will come about only if the employer asks for one following a union’s claim of majority support based on authorization cards.

Old Rules
Prior to Cemex, unless an employer voluntarily recognized the union, the union had to file a representation petition, which would trigger a vote among employees. Unions could make a claim for majority support based on signed authorization from a majority of employees in an appropriate bargaining unit. At that point, the employer could voluntarily recognize the union as the exclusive representative of employees in the proposed bargaining unit, but only if the union presented evidence of support from a majority of employees in the unit. An employer, however, committed an unfair labor practice if it voluntarily recognized a union without majority support.

If the employer did not grant voluntary recognition of the union, then the union’s only recourse was to file a representation petition seeking certification by the NLRB (so long as it had obtained authorization from at least 30% of employees in the proposed bargaining unit). An election was scheduled, and the employer could challenge the scope of the bargaining unit, which would trigger a hearing. During this pre-election period, the employer could also provide information to employees regarding the realities of unionization, within limits prescribed by the National Labor Relations Act. Once the scope of the bargaining unit was settled, a vote was held. If a majority of employees voting supported the union, then the NLRB would certify the union as the exclusive representative.

New Rules
Under Cemex, if a union claims majority support of employees in a proposed bargaining unit and seeks voluntary recognition from the employer, the employer must either:

• Voluntarily recognize the union, or
• File its own representation petition (an “RM” petition in NLRB parlance) within 14 days of the union demand.

If the employer does neither, the NLRB will order mandatory union recognition without an election. The employer can then refuse to bargain and force the union to file an unfair labor practice (ULP) charge against the employer. The employer can at that point attempt to defend and justify the refusal to bargain by proving that the proposed unit was not appropriate or that the union lacked majority support.

If the employer files the RM petition, but commits a ULP before the election is held, the remedy will (in nearly all cases) be a mandatory bargaining order requiring union recognition by the employer. In the past, ULPs committed while an election was pending usually resulted in a rerun of the election—absent very extraordinary circumstances. However, under the new standard, the results of the election will stand only if the NLRB finds that it was “virtually impossible” that the ULP could have affected the outcome of an election. Given the current clear and unequivocal pro-union alignment of the NLRB, in no case should an employer expect the NLRB to find a ULP could not have affected an election’s outcome. Thus, practically speaking, any ULP between the filing of a petition and the election will result in a bargaining order.

Proof of Support
While the union must make a demand for voluntary recognition based on majority support, many questions remain about the form of such a demand: (1) Must the demand be made in writing, or can a verbal demand be made? (2) How specific must the scope of the proposed bargaining unit be? (3) Must the union offer proof of majority support? (4) Alternatively, can the employer demand to see the support? (5) If proof of majority support is required, what form can it take? (6) Does proof of support need to be in the form of a valid authorization that would trigger an election? We anticipate the General Counsel for the NLRB, which is its chief prosecutor, will offer some guidance shortly.

Based on existing case law on voluntary recognition, we would expect the NLRB to require some showing of support that would be the equivalent of a valid authorization card and that such support needs to be presented to the employer for review.

Our New Advice:

1. Consider training employees now about what it means to sign a union authorization form and help them see through misrepresentation or false promises that unions might make when collecting signatures. Such training can also include broader discussions about the pros and cons of union representation and continuing as nonunion.
2. If a union makes a claim of majority support among employees in a proposed bargaining unit, demand to see the evidence of the majority support that the union claims to have and make copies.
3. Determine if the union’s proposed unit is an appropriate unit under NLRB case law. Is the union cherry-picking employees or small groups of employees to include or exclude from the proposed unit without logical basis of distinction? You will likely need legal advice for this determination.
4. If the union lacks majority support or the proposed unit does not constitute “an appropriate unit,” you can challenge it either (1) through the filing of an RM petition, or (2) do nothing and wait for the NLRB order to bargain, refuse to bargain, and challenge the mandatory recognition by defending an unfair labor practice case. In most situations, we think it would be most cost effective to file an RM petition.
5. If the union has majority support and the proposed unit is appropriate, decide if you want to force an election to test the strength of that support. If so, you need to file an RM petition within 14 calendar days of the demand.
6. After filing an RM petition, the employer wants to avoid crossing the line of committing an unfair labor practice before the election is held. The remedy for a violation will no longer be a rerun of the election, but mandatory recognition and a bargaining order. It is important to train managers on the do’s and don’ts of campaign communications.
7. If an RM election petition is filed, start your communication campaign with eligible voters promptly. The election timelines are short and will get even shorter based on new NLRB rules taking effect December 26, 2023.

Conclusion
We recommend you immediately obtain legal counsel to navigate these new pro union rules when faced with a union demand for recognition. Failure to act swiftly will imperil your ability to avoid being unionized.