What You Don’t Know Can Hurt You

On August 25, 2023, in the case of Cemex Construction Materials Pacific, LLC, the National Labor Relations Board (NLRB) announced a new framework for determining when employers are required to bargain with newly-formed unions. If you are not aware of the particulars, what you don’t know can hurt you. It is possible that union formation and recognition may accelerate in ways that have not been seen by private employers in at least a generation.

First, some background. The NLRB is an independent agency of the federal government with two components: 1) a five-person “Board” that holds appellate-type hearings, adjudicates those cases, and adopts agency rules; and 2) the General Counsel (GC), and her regional office staff who investigate, issue initial decisions, and prosecute cases appealed to the NLRB. The GC sets priorities for the agency, often with the hope of changing the law. The members of the Board and the GC are appointed by the President, with the advice and consent of the Senate. Members of the Board are appointed to 5-year terms, with one term expiring per year, and no more than three of the five members can be from the President’s political party. The GC is appointed to a four-year term and is always the same party as the nominating President.

Generally, the NLRB – both the Board itself and the GC – swings right or left based on the political party of the appointing President. As a result, decisions made, and rules adopted by the NLRB, often oscillate from one end of the spectrum to the other, creating whiplash for employers and employees alike.

In recent years, the Board and the GC acted in ways that were more favorable to employers. That is not the case today, with President Joe Biden, who promised to be the most pro-union President ever. He and a majority of his NLRB appointees have been acting consistently with that promise. If you, as an employer, haven’t been paying attention, you may be in for some unpleasant surprises.

In the past, employees wishing to form a union filed a petition with the NLRB, and if they demonstrated sufficient interest for a union through signed authorization cards, an election was scheduled. This is similar to how voting for elected officials works in a democracy—first, a petition is filed showing a required level of support for each candidate, then secret ballots are cast to determine the winner. With the exception of some procedural issues that have changed back and forth over the years, such as time frames applicable to steps in the process and when/how challenges to votes are considered, this general order of the union organizing process has been a constant under labor law. In a reversal of over half a century of practice, a newly-adopted process in Cemex requires employers to recognize and bargain with a union that has demonstrated majority support from the employees at issue unless the employer elects to “promptly” file a petition for an election pursuant to Section 9(c)(1)(B) of the National Labor Relations Act.

Here is how things work under this new framework: A union sends a letter (or email, or even a text) to any supervisor or manager within a company, notifying the employer that they want to be recognized as a union and saying they have support for this from a majority of the employees in what the union claims is “an appropriate bargaining unit.” The word “any” is not a typo. Any supervisor or manager could receive this notification. (Note: The terms “supervisor” or “manager” were not defined with particularity in the Cemex decision.) The employer must then file a petition with the NLRB, requesting an election (a “RM” petition) within 14 calendar days of receipt of the notice. If the employer does not file a petition requesting a vote within those 14 days, then the employer is required to recognize the union and collectively bargain with it. All without a single ballot cast by the employees impacted.

Even if the employer files a RM petition and an election is scheduled/held, if the employer is found to have committed an unfair labor practice (ULP) that could have affected the election results, the Board will set aside the election, dismiss the employer’s RM petition, and issue a remedial bargaining order requiring the employer to recognize and bargain with the union. What kinds of ULPs might occur? For purposes of this scenario, ULPs can be anything an employer does that interferes with, restrains, or coerces workers not to join a union. For example, it is the position of the current GC, Jennifer Abruzzo, that an employer cannot have a mandatory meeting with all of its employees to explain the employer’s position on unionization, so employees can consider it when casting a secret ballot. (Note: This is a position that is currently under consideration in a case pending before the Board, but we expect the Board will agree with the GC.) Even though the employer is limited in communicating with its employees about the union, the union is permitted to lobby the employer’s employees, even in the employee’s homes and away from working time, to pressure employees to sign authorization cards. What’s good for the goose is clearly not good for the gander. But, Congress, in enacting the National Labor Relations Act, created this dual standard.  

Does the Cemex decision feel like a trap for employers? Indeed, it does. As a result, we are anticipating a significant uptick in attempts at unionization across the country, in all types of industries and employers and with all types of employees. It is critical that you, as an employer, are prepared. Make sure your supervisors and managers, even at the lowest levels of an organization, know what to do if they receive a letter, email, or text asking them to recognize a union. The current generation of supervisors and managers (and even HR professionals) likely have little to no knowledge and/or experience with unionization efforts. As an employer, you need to educate them, and develop a union response protocol for them to follow, in the event they receive a notification letter from a union seeking recognition.

Need help or don’t know where to begin? Contact our firm and we can assist in getting a preparedness plan in place.