In a regulation issued by the National Labor Relations Board (NLRB), the Democratic majority on the board altered the voting process in rolling back Trump-era changes that had slowed down the election process. The new regulation, issued via a direct final rule that did not go through the full notice and comment rulemaking process, is to take effect on December 26, 2023 (a timely Christmas present for unions). Under the board’s purview, the new regulation avoided the full rulemaking process since the issues dealt with “agency process” and not substantive matters. This is the same procedure followed by the board in 2019 when the then-Republican-controlled board made more than a dozen changes to the election process that slowed down the election certification process, among other moves. Many of the Trump-era changes were struck down in January this year by the U.S. Court of Appeals in the District of Columbia Circuit when it found the changes were substantive in nature and required changes go through the formal rulemaking process.
The new regulations list 10 amendments to election procedures returning to a 2014 rule that the NLRB had said “codified best practices, simplified representation case procedures, made those procedures more transparent and uniform across regions, and modernized those procedures in view of changing technology.” Included in these changes are limitations on the issues to be decided in pre-election hearings. For example, the board has changed the rules to limit the pre-election hearing to deciding whether the election should actually take place and the logistics of the election. In a significant procedural change, questions raised over whether individual employees should be included in the proposed bargaining unit (the employees sought to be represented by the union and eligible to vote) will now be contested after the election. In addition, the amendments direct regional officials to conduct elections “at the earliest date practicable” setting aside the current 20-day period between an order directing an election be held and the actual vote itself. NLRB Chair Lauren McFerran said the board has a duty to resolve representation cases as quickly as possible and that “[b]y removing unnecessary delays from the election process, the new rule supports these important goals, and allows workers to more effectively exercise their fundamental rights.”
In another ruling announced on August 25, 2023, favoring unions and expediting the election process, the board issued its decision in Cemex Construction Materials Pacific, LLC, rejecting the long-standing Joy Silk standard, which required an employer to bargain with a union unless it had a good-faith doubt of the union's majority status. In that situation, the employer could refuse to recognize the union purporting to represent the majority of the employees in the proposed bargaining unit, and the union would then have to file a petition for an election with the board.
The board’s announcement establishes a new framework for determining when employers are required to bargain with unions without a representation election. Under the new standard, when a union requests recognition on the basis that a majority of employees in the proposed bargaining unit have designated the union as their representative (typically by presenting signed authorization cards recognizing the union as its bargaining representative), an employer must either recognize and bargain with the union or promptly file a petition with the board seeking a representation election. However, in another departure from traditional holdings, if an employer who seeks an election in these circumstances 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 other union-related headlines, unionization in the first half of 2023 continued to climb with more than 58,000 workers voting to unionize, which is 10,000 more than 2022 first-half totals. This is the second largest increase in first-half organizing since 2000 according to Bloomberg Law’s NLRB election statistics report. A substantial number of these workers are graduate students and medical interns who became eligible for union organization efforts under the board’s 2016 ruling that graduate students are employees under the National Labor Relations Act (NLRA). All told, 662 representation elections have been won by unions this year, which exceeds the number of union election victories in 2022.
And speaking of 2022 union elections, Starbucks continues to wage battles across the country in an effort to defeat union organizing efforts that have become a dominant force to deal with. In the case Leslie v. Starbucks Corporation, the Western District of New York denied the NLRB’s efforts to obtain an injunction under 10(j) of the NLRA seeking to reverse the court’s prior order on a variety of discovery issues. In the court’s opinion, the NLRB was attempting to secure the injunction without the benefit of court-ordered documents that the NLRB and union did not want Starbucks or the court to see, finding that the union refused to comply with the discovery order and the NLRB enabled the obstruction to occur. The court concluded that if the NLRB does not certify that it has “terminated all efforts to impede or frustrate the Court’s discovery order” by September 1, 2023, that dismissal of the petition for the 10(j) injunction would be appropriate.
