Unionization in the Fast Lane: NLRB’s New Rule Accelerates Union Formation

The National Labor Relations Board (NLRB) put the pedal to the proverbial metal with its recentCemex Construction Materials Pacific, LLC decision and companion New Rule governing the formation of unions.  Taking effect on December 26, 2023, this regulatory overhaul will accelerate the unionization process and force employers to keep their eyes on the road to unionization.

The Winding Road to Cemex

The unionization road has a long history of twists and U-turns.  Following the 1949 Joy Silk Mills, Inc. decision, an employer confronted by a union asserting majority status based on authorization cards was required to recognize the union unless it had a “good faith doubt” as to majority status.  If the employer was unable to demonstrate this “good faith doubt,” the NLRB would order the employer to recognize and bargain with the union without a secret ballot election.

In 1969, the Supreme Court held in NLRB v. Gissel Packing Co. that employers had the right to refuse voluntary recognition of the union and insist on an election.  In the 1971 Linden Lumber Division, Summer & Co. decision, the NLRB formally overruled the Joy Silk doctrine, holding that when confronted with authorization cards purportedly signed by a majority of employees, an employer could reject the cards and insist on a NLRB-conducted election. 

Under existing 2019 rules, a union can be generally formed in two ways.  Under the first method, if at least 30% of the workforce signs a union card for representation, those workers may file a petition with the NLRB for a union election.  If the union wins the election with 50% + 1 vote, the employer must bargain in good faith with the union.  Under the second method, if a majority of the workforce signs union cards, the union can ask the employer to voluntarily recognize the union.  If the employer refuses to recognize the union, as is its right under Linden Lumber, the burden is placed on the proposed union to file a petition with the NLRB for an election to attain union recognition.

Cemex and the New Rule Speeds Into Existence

In Cemex, the employer was accused of unfair labor practices before, during and after the critical period between the filing of the election petition and the election.  During the proceedings, the NLRB’s General Counsel, Jennifer Abruzzo, filed a brief asking the NLRB to revive the Joy Silk doctrine.  While Cemex falls short of completely reviving the Joy Silk doctrine, it establishes a fast lane to unionization by requiring an employer, faced with a demand for recognition based on a claim of majority support, to either (1) immediately recognize the union as a bargaining representative, or (2) promptly (within two weeks) file a RM petition form (Representation Petition) for an election.

The New Rule fast-tracks the scheduling of events by shortening the timeframes between pre-election hearing, election and post-election processes and shifts the burden of filing the petition to the employer instead of the proposed union. 

Cemex also sets a (speed) trap for unwitting employers.  Employers that commit any unfair labor practices during the critical period run the risk of having their RM petition dismissed by the NLRB and may instead be subject to a mandatory “bargaining order” requiring recognition of the union. 

In Cemex, the NLRB found the employer’s tactics used to bust a union equated to unfair labor practices, and included:

• Threatening employees with plant closures, discharge or reduced hours, if they voted for the union.
• Terminating a union employee because of that employee’s union activity.
• Creating the impression of surveillance and placing employees under surveillance for union activities.
• Interrogating workers about their personal union activity.
• Hiring security guards to intimidate union supporters immediately before the election.
• Promulgating an overly broad directive not to talk with union representatives on company time.
• Promising benefits to employees who voted against union representation.

How Employers Can Rev Up to Prepare For the New Rule

Although we expect legal challenges to Cemex and the New Rule, employers should take action now to prepare for the bumpy road ahead. 

1. Familiarize yourself with the New Rule, what a demand for recognition is, and how a RM petition is filed with the NLRB.  Keep in mind that you only have two weeks to file your RM petition. 
2. Review your Employee Handbook and internal communication policies to make sure they are compliant with the New Rule and the NLRA.  If they are not compliant, work with legal counsel to bring them into compliance.
3. Consider additional training to minimize the risks of unlawful conduct during the critical period resulting in unfair labor practice charges and a mandatory bargaining order. 
4. Develop a response plan for demands for union recognition, including educating and training supervisors and managers on what to do if they receive a demand for recognition.
5. Maintain positive employee relations and do not engage in unfair labor practices against employees for union activity.
6. Consult with legal counsel in advance; you’ll want them on “speed-dial” if you receive a demand for recognition.

© 2023 – Fennemore, LLP   All rights reserved. The information in this article has been prepared by Fennemore, LLP for informational purposes only and does not constitute legal advice.

This article is republished with permission and was originally prepared by June Monroe (email: jmonroe@fennemorelaw.com) and Elise O’Brien (email: eobrien@fennemorelaw.com) of Fennemore, LLP with offices in California, Arizona, Nevada and Colorado.

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