Quite an August at the NLRB
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The Cemex Decision: Navigating The New Era Of Union Organizing
So far, 2023 has been a banner year for unions. Data from LRI Rightnow shows that unions are winning 4 out of 5 NLRB elections. Yet despite this success, the National Labor Relations Board continues to do everything possible to make it easier for a union to organize your company’s employees.
In August, the NLRB has been on a tear, issuing a series of procedural changes that have left employers scrambling to reassess their labor relations strategies. From adopting stringent new standards for workplace rules to reverting to quick union election procedures, the NLRB has made it abundantly clear that the tides are shifting in favor of unions. Here’s a breakdown of the three significant “strikes” against employer rights you need to know about.
Strike One: The Stericycle Decision and Tough New Standards for Workplace Rules
The NLRB’s Stericycle decision reinstates a modified version of the Board’s pro-union Lutheran-Heritage standard for scrutinizing employer workplace rules. Under this new standard, a rule or policy is “presumptively unlawful” if it tends to chill employees from engaging in protected conduct under Section 7 of the National Labor Relations Act (NLRA). Employers must demonstrate that the rule advances a legitimate and substantial business interest that a more narrowly tailored rule cannot advance.
Employers should consider scrutinizing all workplace rules, policies, and procedures through the lens of the new Stericycle test and brace for unfair labor practice charges and litigation on any rules in place. This is especially important considering the new Cemex standard.
Strike Two: Quick Union Elections Are Back
The NLRB has also reverted to quick union election rules, reversing the 2019 election rules implemented under the Trump Administration by issuing a new final rule for union elections that revives the prior “ambush election” rules. The new rule compresses the period between a representation petition filing and the election. The rule’s impact makes it more difficult for employers to educate employees about unions and unionization before a vote.
The rule negatively impacts employer rights by reducing access to hearings. It also shortens the time between petition and election to as little as 14-21 days. The new rule takes effect on December 26, 2023. Employers would be wise to consider taking proactive steps to prepare for conducting campaigns on a much shorter calendar heading into next year.
Strike Three: The Cemex Decision
The Cemex decision broadens the path for unions to organize an employer. The new framework holds that employees can claim majority recognition via card check and that the employer must either recognize or challenge via filing an RM petition. However, should an employer seeking an election commit unfair labor practices, that alone would require setting aside the election. The Board will then order the employer to recognize and bargain with the union.
Cemex creates a new, perhaps very flawed, framework for determining when employers must recognize and bargain with a union. Employers must operate under this new standard while litigation plays out. See LRI analysis and guidance here.
What’s Next?
There are indications that more changes could be coming, such as a potential ban on mandatory employee meetings about unions and revisions to the Tricast doctrine. Both would further ease the path for labor unions to win elections.
An NLRB ban on mandatory meetings would severely limit an employer’s ability to communicate its stance on unionization to its employees. Changes to Tricast would make it more challenging for employers to discuss their direct relationship with their employees.
Conclusion
The NLRB remains committed to facilitating union organizing despite unions already having an 80% win rate. Employers should consider taking immediate steps to train management on legal rights and responsibilities, prepare for quick litigation, and effectively communicate their stance on unionization. Stay tuned for future updates.
This is a wake-up call for employers navigating a rapidly changing labor relations landscape.
