On August 25, 2023, the National Labor Relations Board (Board), upended almost 50 years of precedent by deciding in Cemex Construction Materials Pacific, LLC (Cemex) that an employer who commits an Unfair Labor Practice (ULP) during the “critical period” before a Union representation election may be ordered to bargain with the Union without redoing the election or any other remedies coming into play if the ULP is of the nature that would result in the overturning of an election that the employer won.
The Board went further, stating that a union who represents to an employer that it has a majority showing of interest of an appropriate unit of employees will be presumed to be the representative of the employees pursuant to Section 9(a) of the National Labor Relations Act (NLRA) and that the employer will have to bargain with the union “unless the employer promptly files a petition … to test the union’s majority status or the appropriateness of the unit.” This means the onus is now on the employer to contest whether the union has a majority among the workforce. This approach turns on its head 50 years of precedent and the requirement that if an employer refuses to bargain, the union must file an election petition. Employers will now be put in the position that they must file the election petitions and run the risk that any ULPs, not just Gissel “hallmark” violations that require the election to be set aside, may result in a bargaining order.
In the Cemex case, the Board was faced with an employer who allegedly committed 28 ULPs leading up to a representation election. These ULPs were classified into three categories as “threats of plant closure, other threats of job loss, and discipline and discharge of a prominent union supporter,” each of which is considered a “hallmark” violation of the NLRA. Each of these violations occurred during the critical period, the period between the filing of a union petition and the election testing its representation occurs. The Board examined each ULP and then issued a Gissel order, which requires the employer to bargain, even though the Union lost the election, due to the nature of the ULPs committed and the likelihood that the employer would commit them again.
The new standard is similar to an older Board standard, the Joy Silk decision. Under Joy Silk, an employer could not refuse to bargain with the a Union seeking recognition unless it had a good faith basis that the Union did not have majority. The employer could then test the Union’s majority in an election. If the employer lacked the good faith basis, then the employer would be ordered to bargain with the Union. The new standard in Cemex does not have a good faith element but instead shifts the burden to the employer to either recognize or contest the union’s representation through a free and fair representation election. According to the Board, “[s]imply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way.”
Republican Member Marvin Kaplan, who partially dissented from the Board’s decision, describes the Board’s new standard as dicta (language unnecessary to the decision) that will likely result in “a bargaining order …[as] the first and only option” rather than the exception. Further, Kaplan notes that the Board’s prior decision in Stericycle, with its heightened standard for finding workplace rules to be ULPs, makes it “virtually impossible” for ULPs to not occur during the critical-period which could result in a sharp increase in bargaining orders.
Once the critical-period begins, employee-employer interactions will be examined with heightened scrutiny, which could potentially result in ULPs without a careful strategy and experienced counsel to help with union election petition process. Employers should be mindful of their interactions with employees during this period, making sure both the rules that govern employees and interactions with employees do not result in ULPs. Employers are encouraged to consult with labor and employment attorneys to ensure their actions during any interactions with the union, both during the representation election and after, comply with Board decisions. Stay tuned for more legal developments from the Biden-era Board.