Key Takeaways
The Cemex decision by the National Labor Relations Board (NLRB) has fundamentally altered the labor relations landscape in the United States.
Joy Silk?: Although the NLRB did not revert to the Joy Silk framework, it did plant a minefield in the path of employers facing union organizing drives, and a misstep could incur a bargaining order. The key phrase from the majority opinion:
“… if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order.”
Introduction of RM Petition: Employers are now required to either immediately recognize a union or promptly file an RM petition to conduct an election.
The bottom line, you can still campaign, but you must tread lightly. If you are found to have committed unfair labor practices, the Board can dismiss your election request (or set aside the election outcome and order you to recognize the union and begin bargaining.
This means employers will need to adapt to these seismic shifts by focusing on conducting effective legal campaigns and left-of-boom efforts, including proactive management training, positive employee relations, and legal preparedness.
Click here for Phil Wilson’s full take on the Cemex decision.
Unanswered Questions
- Timing for RM Petition: While suggesting a 14-day period in a footnote in Cemex, the Board has not fully clarified how quickly an employer must file an RM petition and when exactly the clock starts ticking for this. This leaves room for potential legal disputes.
- Scope of Unfair Labor Practices (ULP): The criteria for issuing a bargaining order based on ULPs committed by the employer are not fully defined, leading to potential legal challenges.
- Unit Definition: It’s unclear how the bargaining unit will be defined if the employer files an RM petition, which could lead to disagreements between the union and the employer.
Proactive Responses by Employers: Left of Boom Activities
Considering the Cemex decision and its implications, employers should focus immediately on “Left of Boom” activities. These are proactive measures aimed at preventing a situation where a union gains enough support among employees to even initiate the process for recognition.
Positive Employee Relationships (PER) Training
- Focus: Building positive relationships among employees and between employees and management.
- Content: Company culture, fair treatment, benefits of employment, and conflict resolution.
- Timing: Integrated into the hiring process, continued in new hire orientation, and updated for existing employees.
Union Education
- What is a Union: Dispelling myths and misconceptions.
- NLRA Rights: Rights and responsibilities under the National Labor Relations Act.
- Value of your Signature: Importance of understanding union authorization cards and what signing one means.
Leadership Training for Managers
- Content: Approachability, union education, and NLRA Do’s and Don’ts.
- Notification: Managers should notify top management if a union requests recognition.
- Frequency: Updated at least annually.
“Always On” Vulnerability Assessment
- Purpose: Identify and address issues before they escalate.
- Skip-Step Opportunities: Alternative channels for employees to report issues.
Card-Signing Playbook
- Readiness: “What does signing a card mean?” – Updated and ready to deploy at the first signs of organizing.
- Lawful Opinion: Prepared to lawfully express views on unionization.
Bargaining Units and RM Petitions
- Advance Planning: Think about potential bargaining units in advance.
Legal and Consulting Team
- Preparation: Identified and worked on response plans.
External Communication Strategy
- Social Media: Pre-approved external communications.
- Internal and External Communications: ready to deploy.
Tabletop Exercise
- Response Plan: Test your current response plan with a tabletop deployment simulation.
Conclusion
Employers should focus on building strong relationships with their employees as a preventive measure against unionization. With the new rules in place, the time to act is now, and preparedness is key. We can help. Call us anytime at 800-888-9115.
