A one-two punch: Over the course of two days, the NLRB completely changed the landscape for labor organizing in the U.S., leaving the door wide open for a union comeback.

As if the National Labor Relations Board’s (“NLRB” or the “Board”) decision in early August establishing a new standard for the review of employer rules and policies was not enough of a shock to the system of employers, the Board followed that move up with a pair of actions last week, which will radically alter the labor landscape for the foreseeable future.  The Board’s actions also highlight what makes the NLRB such a uniquely powerful agency, as the NLRB can change the law both through its rule-making authority, as well as the adjudication of cases selected by the General Counsel for that very purpose.

A return to the Quickie Election Rules

On August 24, 2023, General Counsel Jennifer A. Abruzzo announced that the Board had adopted a Final Rule amending its procedures governing union elections, which reverses the changes made by the Board under President Trump in 2019 and returns the Board to many of the election procedures put in place by the Obama Board in 2014.  The 2014 rules were aptly known as the “Quickie Election Rules” because they dramatically reduced the length of the period between when the union files its representation petition and the actual election.  By shortening that period (and adding a number of administrative hurdles that an employer must comply with during that time period), the Quickie Election Rules make it nearly impossible for an employer to adequately respond to a union organizing campaign.

The Quickie Election Rules, which will be effective December 26, 2023, reduce the election period through several changes, including the following notable changes to the election process:

• Allowing pre-election hearings to begin more quickly;
• Ensuring that important election information is disseminated to employees more quickly;
• Making pre- and post-election hearings more efficient; and
• Ensuring that elections are held more quickly.

In announcing the adoption of the Final Rule, Chairman Lauren McFerran stated, “By removing unnecessary delays from the election process, the new rule supports these important goals, and allows workers to more effectively exercise their fundamental rights.”

The Board creates a new framework for deciding when employers must bargain with unions without an election.

On August 25, 2023, the NLRB issued a decision in Cemex Construction Materials Pacific, LLC, which abandoned 50 years of established NLRB precedent.  The Cemex case involved a union election in which employees voted against representation by the Teamsters, by a margin of 179 to 166.  The General Counsel and the Union alleged that Cemex engaged in extensive unlawful and otherwise coercive conduct before, during, and after the election, which they argued required the Board to set aside the election and affirmatively order Cemex to bargain with the Union.

With the Cemex decision, the Board removed any requirement for unions to file a petition for an election before an employer may be required to recognize the union.  Rather, the union can demand recognition based on its claim that a majority of employees in the unit support the union.  Under the framework created by the Board under Cemex, if a union makes a claim of majority support, the employer must:

1.  Immediately grant recognition without any NLRB election, or
2.  File its own NLRB petition, an RM petition, seeking an election promptly.

If the employer fails to take either step, the Board will order mandatory union recognition (with no election) unless the employer—in a later unfair labor practice proceeding—proves that the union did not have majority support or that the claimed bargaining unit was inappropriate.

But wait, there is more…a lot more.  Although the Cemex rules permit the employer to petition the NLRB for an election in response to a union recognition demand, nearly any unlawful conduct during the “critical” period leading up to the election will prompt the Board to issue a mandatory “bargaining order” requiring union recognition.  This new standard shifts from a high threshold in which the Board would only issue a “bargaining order” when unlawful conduct made it “improbable” that a “fair election” could be held, to a minimal standard triggered by any claimed unfair labor practice by the employer.  Considering this Board is constantly expanding the protections of the National Labor Relations Act (“NLRA”), including with its recent decision in Stericycle, employer conduct that may have been lawful six months ago could now lead to a bargaining order.

The Board’s game-changing decision upended 50 years of precedent rejecting a requirement that employers file an NLRB petition seeking an election whenever unions demand recognition. Therefore, we fully expect that a legal challenge to the Board’s decision will be filed in the coming months, most likely in the D.C. Circuit Court of Appeals.

Employers must take proactive steps in response to the Board’s trio of August decisions.

The Board’s structure gives it unique authority to change labor law both quickly and substantially.  While the courts do provide a limited check on this authority, employers should take steps to immediately review their labor relations strategy.  A proactive approach to labor relations is particularly necessary in industries vulnerable to union organizing, such as the cannabis industry.

Employers can take all the following steps to mitigate their labor relations risk:

• Review your handbooks, policies, rules, and agreements immediately. The Board started August off with a bang when it established a new employee-friendly standard for its review of employer rules, which replaced the standard created by the Board in 2019 in Boeing. Under this new standard, many common employer policies, such as codes of conduct and social media policies, will be found unlawful.  However, it is not just handbook policies that are subject to Board review, but all rules disseminated by any supervisor.  Therefore, it is important for employers to review all rules – whether they be contained in a handbook, posted on the company’s intranet, or contained in a confidentiality agreement.  With the decision in Cemex, the risks of maintaining one or more unlawful rules increased significantly.
• Train your supervisors. It is important to remember that supervisors are walking and talking employee handbooks.  Just as a policy preventing employees from disparaging their employer would be unlawfully overbroad, so would the same statement made by a supervisor.  However, few supervisors have heard of the NLRA, and even fewer understand the rights it protects.  And yet, every time an employer’s supervisors talk to your employees, that employer is risking that supervisor unwittingly saying something that could constitute an unfair labor practice.  Employers should mitigate that risk by training their supervisor on the NLRA, protected concerted activity, and signs of union organizing.
• Evaluate the health of your workforce. Even the best employers have employees who are dissatisfied occasionally.  It is important for employers to understand the issues impacting their workforce to avoid the challenges posed by a union organizing campaign.

The labor attorneys at Bianchi & Brandt are available to discuss steps to help employers get ahead of these issues.