Last week, the National Labor Relations Board (“NLRB” or “the Board”) took two actions resulting in a more favorable election process for unions. One was a final rule issued on August 24, 2023, rescinding many of the remaining election procedure amendments put in place by the Board’s 2019 final rule. The other was a Board decision that limits an employer’s ability to insist a union election be held before having a duty to bargain with the petitioning union. This article addresses both Board actions.
NLRB Final Rule
The new Board rule returns many of the employee-friendly election procedures from the 2014 final rule. The rule becomes effective December 26, 2023.
The Board issued Thursday’s final rule without the notice and comment period, justifying this action by stating the provisions of the final rule address only agency procedure, and the final rule simply returns to provisions that resulted from notice and comment in 2014.
Thursday’s final rule largely diminishes the time employers have to prepare and respond during the election process, implementing a total of 10 amendments to the election process. Significantly, these amendments include:
- Shorter timelines between service of the Notice of Hearing and opening of the pre-election hearing;
- Limitations to a party’s ability to postpone the pre-election hearing;
- Less time permitted for the employer to produce its Statement of Position;
- Limitations to the employer’s ability to obtain an extension for filing its Statement of Position;
- Leniency for the union in responding to the employer’s Statement of Position;
- Less time permitted for an employer to post the Notice of Petition for Election in the workplace and distribute the Notice to employees;
- Postponement of the resolution of certain disputes until after an election;
- Limitations to a party’s ability to file post-hearing briefs;
- Requirement that Regional Directors of the NLRB specify election details immediately in the Decision and transmit the Direction of Election with the Decision and Notice of Election; and
- Requirement that Regional Directors schedule elections for the “earliest date practicable” after issuance of a Decision and Direction of Election.
Practically, these amendments will result in expedited elections at the expense of employers’ time to prepare and respond to union efforts and petitions.
Board Decision Impacting Employers’ Duty to Bargain
Subsequently, on Friday, August 25, 2023, the Board dealt employers another blow in its decision in Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters. This decision overrules the Linden Lumber standard for determining when an employer has unlawfully refused to recognize and bargain with a designated majority representative of its employees. While this is not the full swing back to the Joy Silk standard – which is the NLRB General Counsel’s stated goal – this is still a dramatic shift for employers. The new standard under Cemex limits an employer’s ability to insist on an election before it is found to have a duty to bargain and makes remedial bargaining orders more readily available.
Prior Joy Silk and Linden Lumber Standards
Under the Joy Silk standard, an employer was required to recognize a union – without a secret ballot election – when then union presented union authorization cards signed by a majority of employees, unless the employer could demonstrate “a good-faith doubt” as to the actual status of the union’s majority. Applying this standard, the Board considered all relevant facts of the case, including unlawful conduct by the employer, the sequence of events, and the time lapse between the refusal to bargain and unlawful conduct.
Under the Joy Silk standard, the Board found that union authorization cards that clearly state their valid purpose were valid evidence of the union’s majority status.
Later, in Linden Lumber, the Board abandoned the Joy Silk standard and held that an employer does not unlawfully refuse to bargain with a union solely on the basis of its refusal to accept evidence of majority status other than the results of a Board election. The Supreme Court later upheld the Board’s decision in Linden Lumber. Under this standard, employers were permitted to insist on a Board-conducted election as a precondition to the statutory obligation to bargain.
New Standard Under Cemex
In overruling Linden Lumber, the Board held that an employer unlawfully refuses to recognize and bargain with a union unless the employer promptly files a petition to test the union’s majority status or appropriateness of the unit, assuming the union has not already filed such a petition. If the union has already filed the petition, the employer may await the processing of that petition.
Under the new framework, if the employer commits an unfair labor practice that prevents a free, fair, and timely representative election after it (or the union) seeks a Board election, the petition will be dismissed, and – rather than re-running the election – the employer will be subject to a remedial bargaining order from the NLRB.
The Board will no longer look to Gissel bargaining orders, which were imposed only where the unlikelihood of a future fair election was proven. Rather, remedial bargaining orders will be issued upon a showing that an employer has engaged in unfair labor practices that frustrate the election process.
Thus, if an employer is found to have frustrated the election process, the employer will be forced to recognize a union’s majority status established by non-election means. The Board further confirmed that the holding in Cemex will be applied retroactively.
The Board has flipped the script. Before this week, if a union presented signed cards or a petition showing a majority of employees seek union representation, the employer could ignore that showing and insist on a secret ballot election. Now, if the employer gets signed cards or a petition, it must affirmatively file an election petition with the board within two (2) weeks or else it will have to recognize the union and commence bargaining or face a bargaining order. So effectively, a union can use card check to win over employees now – in contrast to decades of legal precedent.
Employers should carefully review their handbooks and guard against being pulled into an unfair labor practice charge by conduct directed towards employees (whom the union may coach). Employers who wish to remain union free should remain alert for signs of signatory gathering. Employers should also prepare now for how it might file an election petition in light of the new, shorter time period to file.
The Board has made it clear once again that it favors union organizing, and these recent law changes make it much easier for unions to organize a workforce and avoid a secret ballot election in the process.