LABOR RULES Two More Anti-Employer Actions That Employers are Going to Hate
T
he National Labor Relations Board (NLRB) under the Biden administration has developed a decidedly anti-employer, pro-union philosophy that spells significant trouble for all employers—union or non-union. Two recent actions by the Board eliminate any doubt regarding the Board’s pro-union agenda. In the first of those actions this past August, the Board issued an administrative decision making it far easier for unions to obtain recognition without first prevailing in an NLRB sponsored employee secret ballot election. In the second action this October, the Board issued its Final Rule on joint employer status which significantly changes the legal standards under which joint employer relationships are analyzed, and in doing so, makes it significantly easier to find employees that are employed by more than one company. These changes will greatly increase the pressure on employers when responding to union organizing efforts and when coordinating with other employers for labor and services, such as staffing agencies and independent contractors. These rules also dramatically complicate the ways in which employers must remain separate to avoid being responsible for each other’s unfair labor practices, picketing, hand billing, corporate campaigns or other union organizing activities. Cemex Case—A New Standard When Presented with Authorization Cards On August 25, 2023, the Board issued a decision, Cemex Construction Materials Pacific LLC, making it substantially easier for unions to obtain recognition without requiring them to first succeed in a secret ballot election. In doing so, the Board overturned 52 years of legal precedent and ignored the Supreme Court’s decision in Linden Lumber Division, Summer & Co. In the Linden Lumber case, the Board held that employers were allowed to refuse to accept evidence of majority support of
a union based upon the reasoning that NLRB sponsored elections were favored over card check or other methods of union recognition. The Cemex decision makes two significant changes which heavily favor unions seeking recognition and upsets the previous framework. These changes include the following: 1. The Board shifted the burden from the union to the employer to “promptly” request an election. The National Labor Relations Act (NLRA) provides two methods for unions to obtain recognition as the exclusive bargaining representative for a unit of employees: 1) a secret ballot election; or 2) the union’s collection of authorization cards from a majority of employees in the potential bargaining unit (also known as card check). Under the second option, the employer has the choice between either accepting the authorization cards and recognizing the union or refusing to recognize and requiring the union to petition for an election. Historically, upon employer refusal to recognize the union, the burden has always been on the union to then request an election. The Board’s decision in Cemex shifts that burden to the employer, contrary to the Supreme Court’s decision in Linden Lumber. In addition, the Board’s decision limits the timeframe for the employer to petition for an election to a mere two-week window or risk losing the right to have an election. These changes appear to be a transparent effort to increase the likelihood that an election does not occur and that a bargaining order is issued. 2. The Board lowered the standard to issue a bargaining order (instead of re-running the election) if the employer commits any unfair labor practice during an election campaign.
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The other dramatic change created by the Cemex decision is the NLRB’s effort to eliminate elections all together when finding that an employer has committed a minor or routine unfair labor practice during the period preceding a scheduled union election. This will have the effect of forcing employers to bargain with the union, even if a majority of the employees do not want union representation. This stands despite the fact that current NLRB statistics show unions winning more than 80 percent of regular election petitions. In essence, any time an employer commits a routine unfair labor practice during a union election, the Board took the extraordinary step of deciding it would issue an order requiring the employer to recognize and bargain with the union, rather than scheduling another election. In the past, the Board has rarely imposed such orders and only utilized such an extreme remedy in those rare cases where the employers’ actions were so egregious that it was impossible to hold a fair election. In Cemex, however, the Board appears to have greatly relaxed the legal standard for determining when such a drastic remedy is imposed. The new NLRB bargaining standards will likely be challenged vigorously by employers, with such challenges eventually reaching the circuit courts of appeals, and perhaps even the Supreme Court in light of these changes created by this decision. Key Employer Takeaways from Cemex Under these new standards, employers must be prepared to act quickly if union organizing begins, and if they are ever presented with a majority of signed authorization cards, including being prepared to file a petition for election within two weeks. A failure to do so will result in loss of the right to an election and the receipt of an order to bargain. Under the Board’s new relaxed standard for issuing a bargaining order, it is now even more critical to avoid committing any