NLRB Delivers One-Two Punch to Employers Seeking to Remain Union-Free

In a pair of actions in the final week of August 2023, the National Labor Relations Board (NLRB or the “Board”) delivered a one-two punch to employers desiring to remain union-free. On August 24, the Board issued a Final Rule restoring the elements of the 2014 “Quickie Election” rules that had been rolled back by a 2019 rule. The following day, the Board issued its decision in Cemex Construction Materials Pacific, LLC, in which the Board declared a new standard for recognizing unions without a vote when they present authorization cards signed by a majority of employees. Together, these actions make it significantly easier for a union to be certified or recognized as the collective bargaining representative at any employer.   

The Second Coming of Quickie Elections

On August 24, the NLRB issued the latest chapter in its decade-long saga of actions designed to make it easier for unions to win representation elections. The Board issued a Final Rule amending its procedures governing representation elections; those are the NLRB-conducted elections held to determine if employees wish to be represented by a labor union. The new rules are designed to reduce the time between the filing of an election petition and the holding of the election.

We’ve been here before. In 2011, the Obama Board first proposed expedited election procedures – the so-called “Quickie Election” rules – but those were delayed by court action and the absence of a proper quorum on the Board. By 2014, however, those hurdles were resolved, and the Board reissued the new rules. In 2019, the Trump Board revised election procedures to significantly roll back the 2014 rule, returning NLRB election timelines to the norms, which had prevailed for decades prior to 2014. Now, the Biden Board has swung the pendulum back in favor of organized labor, reversing the 2019 rule and restoring the 2014 rule. 

Scheduled to take effect on December 26, 2023, the new Final Rule includes 10 amendments. Throughout its explanation of the amendments, the Board consistently emphasizes its duty to protect employees’ rights by fairly, efficiently, and expeditiously resolving representation cases. Loaded with “inside baseball” stuff that only experienced labor law practitioners may appreciate, the 10 amendments are designed to compress the timeline between the filing of an election petition and the date the election is held. Those 10 amendments are as follows:

1. Pre-election hearing: To be held 8 calendar days after service of the petition and notice of hearing on the employer; reduced from 14 business days under the 2019 rule.
2. Postponement of pre-election hearing: An NLRB regional director may postpone a pre-election hearing for up to 2 business days upon request of a party showing special circumstances, or greater than 2 business days upon a showing of extraordinary circumstances; the 2019 rule permitted postponement for an unlimited amount of time upon a showing of good cause.
3. Statement of Position: The employer’s Statement of Position responding to the election petition must be filed with the NLRB by noon of the business day before the pre-election hearing, i.e., 7 calendar days after receiving the petition and notice of hearing; down from 8 business days under the 2019 rule.
4. Postponement of Statement of Position: A regional director may extend the due date for a Statement of Position by up to 2 business days upon request of a party showing special circumstances, or greater than 2 business days upon a showing of extraordinary circumstances; the 2019 rule permitted postponement for an unlimited amount of time upon a showing of good cause.
5. No written response to Statement of Position: The petitioner (the party seeking the election) shall respond orally to the non-petitioning party’s Statement of Position at the beginning of the pre-election hearing. Under the 2019 rule, the petitioner had 3 business days to file a written response.
6. Posting of the Notice of Hearing: The employer has 2 business days to post (in conspicuous places in the workplace) the Notice of Petition for Election (received with the Notice of Hearing); down from 5 business days.
7. Limited issues at the pre-election hearing: The new rule restores the part of the 2014 rule that limits the pre-election hearing to determining whether a question of representation exists and denies litigation of other key procedural issues concerning which persons could vote or what is the appropriate bargaining unit. The 2019 rule permitted the litigation of those key procedural issues at the pre-election hearing.
8. No post-hearing briefs: Following the pre-election hearing, a party may file a post-hearing brief only with the regional director’s special permission. Under the 2019 rule, the parties had an automatic right to file a post-hearing brief within 5 business days after the hearing. Instead of written briefs, parties must now present oral arguments immediately at the close of the pre-election hearing.
9. Notice of Election transmitted with Decision and Direction of Election: The new rule directs that the Notice of Election (a document that spells out the details regarding the “when and where” of the election) be transmitted together with the Decision and Direction of Election (the document by which a regional director announces the outcome of the pre-election hearing). The 2019 rule permitted the Notice of Election to be issued sometime after the Decision and Direction of Election.
10. Elimination of the 20-business day waiting period: The 2019 rule imposed a mandatory 20-business day waiting period between the decision and direction of the election and the election. The 2014 rule required holding the election at “the earliest date practicable;” the new rule eliminates the mandatory waiting period and restores the “earliest date practicable” standard.

Two days here, 3 days there – many of these amendments, by themselves, don’t seem significant. But taken together, these amendments shorten the timeline between when a union files a petition for an election and the date the election is held. 

NLRB data show the effect of the compressed timelines. In fiscal years 2012, 2013, and 2014 – the last 3 years before the adoption of the 2014 rule – the median number of days between petition and election (in contested cases) was 66, 59, and 59. In fiscal years 2016, 2017, and 2018 – the first 3 years after the adoption of the 2014 rule – those numbers dropped to 35, 36, and 41 days. Thus, experience under the 2014 rule shows a reduction of approximately 3 weeks from petition to election.  

For employers, the new Final Rule takes away that most precious commodity: time. All too frequently, employers are caught flat-footed by a union election petition, unaware that a union has been working in secret for months or even years to organize their employees. Employers therefore need time to react to the petition and to begin a campaign of effectively communicating to employees the many reasons why union representation is not in their best interests. By reducing the election timeline by 3 weeks, however, the new Final Rule will severely reduce an employer’s opportunities to communicate with its employees about unionization in general, and the impact a local union seeking to represent its workers would have on its workplace.

Card Check by Another Name

Big Labor and their Democrat allies have long sought “card check” – forced recognition of a union as the representative of workers at a company by showing union authorization cards signed by a majority of employees, thereby circumventing the NLRB’s election process. Presidents Obama and Biden both campaigned on card check, but neither could get it very far in Congress. Now, through an August 25 decision, the NLRB has handed unions a modified version of this incredibly powerful weapon. 

In Cemex Construction Materials Pacific, LLC, the Board was presented with a case where the Teamsters had collected authorization cards from 57% of the ready-mix cement truck drivers working for Cemex. The union filed a petition for an election, at which the company prevailed by a slim margin of 179-166. The union then filed unfair labor practice charges alleging that the company engaged in widespread unlawful and coercive unfair labor practices before, during, and after the election, including threats of plant closure and job loss, surveilling and interrogating employees about their union activity, and discipline of union activists. The Board found that Cemex committed more than 2 dozen unfair labor practices and set aside the election results. But instead of ordering a new election, it issued a remedial bargaining order – a mandate that the employer recognize and bargain with the union as if the union had prevailed at the ballot box. 

As draconian as that might sound, the remedial bargaining order itself is nothing new; the Board has had that tool in its kit since its 1969 decision in Gissel Packing. In Cemex, however, the Board determined that a Gissel bargaining order – viewed by many labor law practitioners as something of a nuclear option – is insufficient to accomplish the NLRA’s goals of effectuating employee free choice and deterring employer misbehavior. Indeed, the Board observed that “[o]ur experience leads us to conclude that the application of the Gissel standard has resulted in persistent failures to enable employees to win timely representation despite having properly designated a union to represent them, and thereby satisfying the requirement for recognition.”  Cemex, 372 NLRB No. 130, at 27. 

Accordingly, in order to make remedial bargaining orders “more readily available,” the Board announced a new standard:

Cemex, 372 NLRB No. 130, at 25 (footnotes omitted). The Board notes that “promptly files a petition” for an election will normally mean within 2 weeks of the union’s demand for recognition. The Board explained its new standard as follows:

The Board’s new Cemex standard gives union authorization cards a new level of power. Under this standard, when a union claims it has cards from a majority of employees and demands recognition, the employer will have 3 options:

1. Agree to recognize the union;
2. File a petition with the NLRB (called an RM Petition) seeking an election to test the union’s majority status;
   1. The employer must file the RM petition “promptly,” within 2 weeks from the union’s demand for recognition;
   2. If the employer commits any unfair labor practice charges that invalidate the election, then the Board will rely on the authorization cards and issue an order requiring the employer to recognize and bargain with the union; or
3. Do nothing: Neither recognize the union nor file an RM Petition, in which case the union may file an unfair labor practice charge alleging violation of the duty to bargain (an 8(a)(5) charge); the litigation of that unfair labor practice charge offers a means for the employer to challenge the union’s claim of majority support, but if the union proves majority support, then the board will find that the employer refused to recognize and bargain with the union as the employees’ designated representative and issue a remedial bargaining order.

None of these options will be very appetizing to most employers presented with a demand for recognition from a union. The RM petition and election pathway offer employers the best chance of defeating the union’s claims of majority support. Of course, that election will be held on the faster timeline required by the new Final Rule discussed in Part A of this First Alert. The danger for employers is that if the Board finds any unfair labor practice – and the current Board may be inclined to act like a basketball referee looking to call every ticky-tack foul – the Board will rely on the authorization cards as proof of majority status, cancel the election, and issue a remedial bargaining order requiring the employer to recognize and bargain with the union.

Meaning for Employers

These 2 developments make it markedly easier for a union to be certified or recognized as the designated collective bargaining representative of employees at any employer. Employers would be wise to begin preparing now for these changes. That preparation should involve at least 4 steps. 

1. First, employers should carefully and candidly review their compensation and benefits packages, workplace policies, and overall treatment of their employees. Are they fair? Have they kept up with the market? Do they reflect the evolving needs of today’s workers?
2. Second, employers should be actively training their managers and supervisors on their rights and responsibilities under federal labor law, how to recognize signs of union organizing activity, and how to react if they observe or learn of those signs. That training should include what not to say or do, so as to avoid or minimize the risk of unfair labor practice charges.
3. Third, working with labor law counsel, employers should begin preparing for “day one,” the day a union demands recognition claiming a majority of signed authorization cards or the day an NLRB election petition arrives. That preparation should include the study of the issues that will need to be addressed at an NLRB pre-election hearing and accompanying position statement – those events happen 7 and 8 calendar days after the union or employer files an election petition, and starting “cold” on those items makes an uphill fight even steeper.
4. Finally, employers should be thoughtfully and genuinely communicating with their employees now about the positive benefits and work environment they enjoy as well as the disadvantages of unionization.

With the ongoing SAG-AFTRA and Writers Guild strikes in Hollywood, the looming UAW strike against the Big Three automakers, and the well-publicized gains made by the Teamsters for UPS workers, union activity is receiving favorable attention in the media like no time in recent history. Employers should revisit their policies and practices to ensure they maintain fair, competitive, and attractive working conditions for all their employees, which is ultimately the key to warding off unions. Employers should also take time now to become familiar with and take a proactive approach to these changes in NLRB procedures. 

Calfee’s Labor and Employment lawyers have been helping employers remain union-free for many decades and stand ready to assist employers in the face of these new challenges.