Update Applicable to:

All employers

What happened?

On August 24, the National Labor Relations Board (NLRB) adopted a final rule amending its procedures governing representation elections, and on August 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.

What are the details?

The forthcoming regulation will substantially reduce the duration it takes to progress from a petition to an election in contested elections and expedite the resolution of any post-election legal disputes. The key alterations introduced by the new rule encompass:

• 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. 

As with previous amendments to the National Labor Relations Board’s (NLRB) election procedures, the new rule will take effect four months after its publication date, affording NLRB’s Regional offices sufficient time to implement the new protocols. Additionally, a companion rule will prevent two provisions of the 2019 Rule, previously halted by a federal district court injunction but scheduled for implementation on September 10, 2023, from being enforced. The new rule formally rescinds those provisions. This rule is set to be published in the Federal Register on August 25, 2023, and its effective date will be December 26, 2023.

Additionally, the National Labor Relations Board, with a majority vote of 3 to 1, has substantially altered the landscape for employees who wish to exercise their Section 7 entitlement to choose a bargaining representative or opt not to do so, which overturned 50 years of precedent and fundamentally re-wrote the process by which private sector employees can unionize. Here are the key takeaways from the board’s decision:

• The Cemex decision introduces a 14-day deadline for employers to submit a petition for a Board-conducted election, starting from the date the union requests recognition. Missing this deadline obliges the employer to recognize the union and engage in bona fide negotiations. Previously, employers could wait until the union initiated the election petition.
• This decision’s compulsory procedure and new standard offer unions a stronger incentive to lodge unfair labor practice allegations against employers for any pre-election activities. Consequently, unions could use this tactic to suspend elections they fear they might lose for various reasons, including insufficient majority support. In many instances, unions may perceive that their prospects are more favorable with the current Board majority, especially given the present composition of the Board, as opposed to relying on employee majorities.
• It is likely that the current Board majority will tend to find that employers (potentially through labor consultants) have engaged in unfair labor practices when the opportunity arises.
• Importantly, the decision has a retroactive effect, applying to all pending and future Board cases unless overridden by a court or supplanted by a new NLRB standard.

For more information, please see the links below:

Law Firm Articles: Article 1, Article 2, Article 3, Article 4, Article 5, Article 6

Representation Case Procedures Rule – Eff 12.26.23

Companion Rule

NLRB Fact Sheet

New Framework Announcement

Cemex Construction Materials Pacific, LLC Case Materials

Final Rule Announcement

What do employers need to do?

Employers should promptly initiate comprehensive supervisor training well in advance of any union involvement. Waiting until organizing activities are already underway may prove counterproductive. Swift action must be taken in response to union demand letters. Enhanced employer vigilance regarding supervisor and consultant communications is likely to be not only justified but also imperative.

The Fisher Phillips law firm noted the following 8-Step Action Plan:

1. Create positive relationships with employees. 
2. Share your philosophy with employees. 
3. Ensure that employees understand the significance of authorization cards.
4. Train supervisors and managers.
5. Develop a consistent process for responding to and handling union recognition demands.
6. Identify your statutory supervisors and strategically evaluate other bargaining unit issues.
7. Recognize that a “one size fits all” approach may not be best.
8. Collaborate with your labor counsel.

The Husch Blackwell LLP law firm provides the following recommendation of what employers can do:

• Train leaders on the early warning signs of unionization
• Ensure managers and supervisors report union talk
• Give employees a voice •Develop trust in leadership
• Sufficient communication from the top down
• Appreciation and recognition
• Fair and consistent treatment
• Respectful workplace /sense of  community at work
• Safe, healthy work environment
• Wages and benefits that support the person / family
• Opportunities for growth
• Flexibility / balance / job fits life
• Job security

The law firm further noted that when a union presents an employer with cards showing it represents a majority of their employees it can demand recognition. An employer can 1) recognize the union, or 2) within 2 weeks, file an RM petition demanding an election. If the employer does nothing, the NLRB will find the employer waived their right to an election in the unit sought by the union and will order the employer to bargain with the union. If an unfair labor practice is committed following the demand for recognition, the Board will issue a bargaining order even if the employees voted against unionization –unless the unfair labor practice is “so minimal or isolated that it is virtually impossible to conclude that the misconduct could have affected the election results.”

Due to the complexity of these developments and the multiple opinions and recommendations being provided by different law firms, employers should seek legal counsel from their trusted employment attorney in any efforts to review, audit, alter, or create any new policies, procedures, and processes in response to these changes prior to implementation of such.

This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.