On Aug. 24 and 25, 2023, the National Labor Relations Board (NLRB) issued new regulations and a decision, which together overturn decades of precedent and represent a sea change in the union election process. First, the NLRB announced a regulatory rule that accelerates the representation election process, returning to the “ambush election” procedures first implemented in 2014. Second, the NLRB in Cemex Construction Materials Pacific, LLC announced a new framework in which an employer may be required to bargain without any representation election at all if the employer is found to have engaged in unfair labor practices during the organizing campaign.
New Representation Election Rule
On Aug. 24, the NLRB announced a new final rule, titled Representation-Case Procedures, “to remove unnecessary barriers to the fair, efficient, and expeditious resolution of representation questions.” The rule “substantially” rescinds the provisions of a 2019 rule intended to lengthen the election representation process, certain provisions of which had been vacated or stayed by courts. Specifically, under the new rule:
Preelection hearings generally will be scheduled to open eight calendar days after service of a notice of hearing.
Regional directors’ discretion to postpone preelection hearings will be limited to two business days in “special circumstances” and more than two business days only in “extraordinary circumstances.”
An employer’s written statement of position will be due by noon the day before the preelection hearing.
Regional directors’ discretion to postpone the due date for statements of position will be limited to two business days in “special circumstances” and more than two business days only in “extraordinary circumstances.”
Petitioners will have to respond only orally at the preelection hearing to an employer’s statement of position and need not respond in writing.
Employers will post a notice of petition two business days after service of a notice of hearing.
Eligibility and inclusion issues will be deferred to the post-election stage unless necessary to determine whether an election should be held at all.
Written briefing after pre- and post-election hearings will be permitted only with “special permission” of the regional director/hearing officer.
Regional directors ordinarily will specify election details in, and transmit a notice of election with, the decision and direction of election.
The waiting period of 20 business days between a decision/direction of election and election will be eliminated — rather, elections will be scheduled “as soon as practicable.”
In essence, the new rule resurrects the 2014 “ambush election” process, which inhibits employers’ ability to educate their workforces about union representation and adequately prepare for union elections. The NLRB issued this rule without public notice and comment on the bases that (a) the rule addresses agency procedures exempt from public notice and comment, and (b) the rule merely reinstates the 2014 final rule, which itself was the product of public notice and comment.
The new rule takes effect Dec. 26, 2023, and applies only to petitions filed on or after that date.
New Framework to Determine When Employers Must Bargain Without an Election.
On Aug. 25, the NLRB issued a decision in Cemex Construction Materials Pacific, LLC, announcing a new framework for determining when employers are required to bargain with unions without a representation election. Under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file its own petition seeking an election. (In a footnote, the NLRB opined that “promptly” will normally mean within two weeks of a demand for recognition.)
However, if an employer that seeks an election commits any unfair labor practice that would require setting aside the election, the employer’s petition will be dismissed, and — rather than rerunning the election — the NLRB will order the employer to recognize and bargain with the union. In the NLRB’s opinion, the new framework acknowledges that employers have the option to invoke election procedures while disincentivizing employers from committing unfair labor practices.
Cemex Construction Materials involved a unit of approximately 366 ready-mix cement truck drivers and driver trainers. By the end of November 2018, at least 207 such employees had signed authorization cards designating the International Brotherhood of Teamsters (the union) as their exclusive bargaining representative. In a February 2019 election, however, the unit voted against representation by a margin of 179 to 166.
The union and the NLRB general counsel challenged the election, asserting that Cemex engaged in unfair labor practices both pre- and post-election. After a hearing, an administrative law judge found extensive evidence of unfair labor practices and ordered remedial measures and a rerun election.
Reviewing the factual record, the NLRB found ample evidence that Cemex engaged in unfair practices to dissuade employees from supporting the union, including but not limited to threatening to close the plant if the union prevailed, threatening employees’ jobs if the union prevailed, and disciplining and discharging a prominent union supporter. The NLRB found that the coercive practices were so widespread as to be not the result of a few rogue managers, but rather a “a carefully crafted corporate strategy designed to skirt as closely as possible the fine line between lawful persuasion and unlawful coercion.”
The administrative law judge found that the general lack of knowledge of this coercive conduct among employees was a mitigating circumstance that warranted withholding a bargaining order pursuant to NLRB v. Gissel Packing Co. The NLRB, however, disregarded the judge’s conclusion, finding that the “most severely coercive misconduct was disseminated to a number of employees far greater than the seven whose changed votes would have sufficed to reverse the outcome of the election.” The NLRB further explained that these “hallmark” violations of Section 8(a)(1) of the National Labor Relations Act were “highly coercive” and that the possibility of erasing their effects with a rerun election was slight. The NLRB also concluded that if a rerun election was held, Cemex was likely to continue to engage in unfair labor practices, making a fair election unlikely. Thus, the NLRB issued an order that Cemex bargain with the union.
Although four years had elapsed since the presentation of union cards and the unfair labor practices, the NLRB found this did not matter because — in the NLRB’s view — the union had majority support in November 2018 and a bargaining order would protect the rights of employees who previously supported the union. The Section 7 rights of those who opposed a union would be adequately protected, according to the NLRB, by the NLRB’s decertification procedure under Section 9(c)(1). The NLRB opined that the passage of time was unlikely to dissipate the impact of the employer’s coercive conduct.
In so doing, the NLRB announced the following framework: “[A]n employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly files a petition [to hold an election] pursuant to Section 9(c)(1)(B) of the [National Labor Relations] Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed [an election] petition pursuant to Section 9(c)(1)(A).” In addition, “if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order.” The new Cemex standard differs from the historical 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.
Member Kaplan dissented. Kaplan pointed out that the NLRB majority found no fewer than 28 unfair labor practices committed in Cemex, yet propounded a new framework in which even one critical-period unfair labor practice may result in an order requiring an employer to recognize and bargain with a union. Kaplan further opined that the NLRB’s new framework undermines employees’ statutory right not to bargain collectively because, among other reasons, a secret-ballot election is a more reliable measure of union support than authorization cards, which unions may pressure employees to sign. Kaplan also pointed out that the majority’s new standard conflicts with the U.S. Supreme Court’s decision in Linden Lumber, which held that an employer does not commit an unfair labor practice by refusing to accept evidence of union support other than the results of a secret ballot election.
What Lies Ahead for Employers?
The more time an employer has to respond to an election petition, the greater the opportunity to prepare for the election and educate employees about the realities of union representation — realities which may have been misrepresented by union organizers. The new rule hamstrings employers’ ability to do both. Not only that, under Cemex, an employer who is found to have engaged in even a single unfair labor practice may, on that basis, be ordered to bargain with a union without any election at all. The NLRB’s actions are thus intended to, and will, severely hinder employers’ ability to oppose union organization. Legal challenges to this decision and the NLRB’s new rule are likely.
Employer awareness and preparation are increasingly critical in light of the NLRB’s new rule and framework. Employers should:
Carefully train managers and supervisors on the boundaries of permissible opposition to a union campaign, and exercise care to remain within the boundaries of the National Labor Relations Act in opposing a union organizing campaign.
Promptly file a petition for election if confronted with a demand for recognition of a union, if the union has not already filed such a petition.
For additional information regarding the impact of these developments, contact the authors of this article or another member of the McGuireWoods labor and employment team.