The NLRB Radically Changes the Election Landscape

By Marr Jones & Wang

August 25, 2023

On August 25, 2023, a majority of the National Labor Relations Board (“NLRB”) issued a decision in Cemex Construction Materials LLC 372 NLRB No. 130 in which it repudiated over 40 years of well-established law set forth in Linden Lumber Co., 190 NLRB 718 (1971), rev’d sub. nom Truck Drivers Local No. 413 v. NLRB, 487 F.2d 1099 (D.C. Cir. 1973), affd 419 U.S. 301 (1974), governing how an employer can respond when confronted by a demand by a union to recognize it based on authorization cards. Although the NLRB still permits the employer to test the union’s majority status through a secret ballot election, the NLRB now puts the burden on the employer to file the petition for an election if the union has not. An employer can no longer tell the union to file with the NLRB.

The most troubling aspect of Cemex is if the employer is found to have committed any unfair labor practices during the time between when the petition is filed and the election that would otherwise require the election to be rerun, the employer forfeits its right to a secret ballot election and will be ordered to recognize and bargain with the union. This type of remedy known as a “bargaining order” had been reserved for egregious cases under the Supreme Court's decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Cemex represents the most significant shift in election lawin decades and reveals how far the current NLRB will go to ensure that unorganized companies become unionized.

In radically changing the election dynamics, the NLRB held that an employer violates the National Labor Relations Act by refusing to recognize, upon request, a union that has been designated a representative through authorization cards unless the employer promptly (within two weeks) files a petition for an election to test the union’s majority status or the appropriateness of the unit. If the union has filed a petition for an election, the employer need not file its own. That is not a radical change from current law, although placing the burden on the employer is a shift. Where the NLRB deviates from decades of law is its holding that if an employer commits an unfair labor practice which would require the election to be rerun, the petition will be dismissed and the employer will be “subject to a remedial bargaining order.” As the NLRB readily admitted, “In overruling Linden Lumber and limiting the employer’s ability to insist on election as a preliminary threshold step to a duty to bargain, we will no longer look to Gissel bargaining orders – that is bargaining orders imposed based on employer unfair labor practices only where the likelihood of holding a future fair election is proven. . . . In our view, the standard we announced today, by making remedial bargaining orders more readily available will deter employer misbehavior in the period before a Board election. . . . This approach has several advantages over the current remedial framework.”

For employers, this approach has no advantages. The NLRB has created a new standard where an employer that declines to recognize a union based on a card majority pre-election conduct must be impeccable. This has not been the law for over 40 years. This sea change is a reflection of the current make-up of the NLRB and, more importantly, the announced agenda of the General Counsel who firmly believes that employers wield too much power and the balance between them and employees needs to be reset.

It is important to understand that under Cemex, severe unfair labor practices or repeated violations are not required to trigger the imposition of a bargaining order. For example, if after the petition is filed, one supervisor asks one employee their thoughts on the union or whether they signed an authorization card in a unit of hundreds employees, that act alone under the NLRB’s decision could be enough to justify the imposition of a bargaining order. An employer who implements a pay raise during the pre-election period although perhaps consistent with prior practice would also be subject to a bargaining order; likewise, if an employer does not proceed with a regular scheduled pay raise could be found to have violated the Act. In sum, the period between the filing of the election petition and the election, which has always been the critical period, will now be a sterile period. One minor misstep, if sufficient to otherwise trigger a rerun election, will result in the employer’s inability to have its employees vote on whether or not they wish to be represented by a union.

Authorization cards have never been seen as a valid indicator of employee support. As most employers are aware, employees are often pressured into signing authorization cards, do not read the cards, or otherwise just sign them due to peer pressure. The NLRB dismisses those concerns summarily. The NLRB had in the past referred to secret ballot elections as the hallmark of the NLRB and prided itself on that process. Now it regards them as an impediment to unionization.

To add to the significance of this decision, on August 24, 2023, the NLRB repudiated the last of the Trump-era modifications to the “quickie” election rules. In summary, the election process will again be extremely short, pre-election hearings will be 10 days earlier than under the Trump-era rules and there will be limited basis for postponing hearings. The ability of regional directors to extend time limits has been severely curtailed. In addition, the hearing will be limited to determining whether an election should be conducted. Issues such as employee eligibility and inclusion issues will no longer be litigated prior to the hearing. Under the 2019 changes to election rules, parties could file post hearing briefs. That right has been eliminated and the parties must present oral argument at the close of the hearing. The 20 business days between the decision and election, which was a part of the 2019 changes, has also been eliminated.

Taken together, the changes in the election rules and the NLRB’s decision in Cemex mark a dramatic shift in how employers are able to remain union free. Employers confronted with a demand for recognition based on authorization cards should contact legal counsel immediately in order to ensure their rights are protected. Remember, do not look at authorization cards if they are presented to you; that will result in you losing your right to have an election.

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