New NLRB framework facilitates mandatory union recognition and bargaining without an election
Continuing its recent trend of precedent-altering decisions and new regulations that have tilted the scales in labor-management relations, the National Labor Relations Board (NLRB or the Board) issued a decision on August 25, 2023 that will expose companies to greater risk of being ordered to bargain with a union even in the absence of a union election victory.
Under the NLRB’s decision in Cemex Construction Materials Pacific, LLC (Cemex), employers who commit even a single unfair labor practice following a union’s demand for recognition may be ordered to bargain with the union.
The Board did not, however, go so far as reinstating its earlier Joy Silk standard (as had been requested by the NLRB’s General Counsel), under which an employer would be required to recognize a union based on a showing of majority support unless the employer could affirmatively establish a good-faith doubt as to the union’s majority status.
Nevertheless, the NLRB’s ruling may eliminate employers’ right to insist upon a secret ballot election free of the union coercion, harassment, intimidation, and threats that may accompany a union’s solicitation of authorization cards. We anticipate that the NLRB’s new standard – which arguably conflicts with US Supreme Court precedent – will be subject to litigation for years to come.
In light of the severe potential consequences of even a single unfair labor practice finding, employers are encouraged to proactively train managers and supervisors on compliance with the National Labor Relations Act (NLRA) and immediately review all policies, handbooks, and other workplace rules to ensure that a potentially overbroad rule cannot be used as the basis for an unfair labor practice finding (see our prior alert here).
In order to represent a bargaining unit of employees, a union is generally required to establish that it enjoys majority support within the unit. As both NLRB and federal case law recognizes, the preferred and most reliable indicator of employee sentiment is a secret ballot election conducted under the auspices of the NRLB.
A secret ballot election, however, is not the exclusive means by which a union may demonstrate majority support. Employers may choose to recognize a union based on a showing that a majority of employees have signed union authorization cards.
Additionally, under Board law as it existed prior to the Board’s newly announced standard, the Board could compel the employer to recognize and bargain with a union where the employer engaged in egregious unfair labor practices that would make a free and fair election impossible.
Although a recognized method of establishing majority support, authorization cards are not always a reliable indicator of employee sentiment. Unlike a secret ballot election, unions know which employees have and have not signed authorization cards, and may engage in threatening, harassing, and intimidating conduct to secure an employee’s signature. Additionally, unions can obtain authorization cards in secret, without giving employers an opportunity to educate employees as to the realities of union representation and the bargaining process.
Indeed, Board law permits union representatives to make misleading claims to employees as to the realities of union representation, under the assumption that employees will recognize the union’s statements as nothing more than campaign propaganda.
In light of the significant advantages that card check recognition (as compared to a secret ballot election) provides to unions, unions have sought for years to amend the NLRA to compel recognition based on a majority of signed authorization cards.
As those legislative efforts have proven unsuccessful, the NLRB General Counsel sought to use the Cemex case to revive the Board’s Joy Silk precedent.
The Board’s decision
In Cemex, the NLRB administrative law judge (ALJ) found that the employer engaged in unfair labor practices both during and after the filing of a union’s petition for election. The employer won the election, but the ALJ found that the employer’s unfair labor practices compelled setting aside the results of the election.
The ALJ declined, however, to order an affirmative bargaining order requiring the employer to recognize the union based on a majority of signed recognition cards.
On review, the NLRB overruled decades of precedent and established a much more union-friendly standard that may – if upheld by the federal appellate courts and/or Supreme Court – have the practical effect of eliminating the right to a secret ballot election in many circumstances.
The NLRB held that an employer confronted with a demand for recognition may still, instead of agreeing to recognize the union, promptly file a petition to test the union’s majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by a union. In that limited respect, the NLRB did not go as far as reinstating the Joy Silk doctrine.
It went on, however, to hold that, if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or union) will be dismissed, and the employer will be subject to a remedial bargaining order, a remedy that the NLRB had previously reserved for only egregious employer violations that would make a fair rerun election impossible. In other words, even a single unfair labor practice violation may result in the loss of the right to a secret ballot election and compel recognition of the union based upon a card check majority.
The NLRB applied its new framework retroactively to the employer in Cemex, ordering the employer to meet with the union on request and bargain in good faith concerning the bargaining unit employees’ terms and conditions of employment, and declared that the new standard would be applied retroactively to currently pending cases.
We anticipate that the Board’s new standard will be subject to extensive federal appellate litigation, whether in the Cemex case itself or other cases decided under the NLRB’s new standard.
Where do employers go from here?
The implications of the Board’s decision are staggering. The nuances of traditional labor law are complex – indeed, the NLRB’s own members often disagree both within the same case and across different administrations as to whether certain types of statements or conduct constitute an unfair labor practice.
The Board’s decision creates a tremendous incentive for unions and their supporters to blindside front-line supervisors and managers with union-related speech and conduct designed to “bait” an incorrect response from the employer, which under the Board’s rationale would then compel card check recognition. For example, a union may encourage its supporters to engage in disruptive and abusive conduct which would otherwise not be tolerated by the employer but falls just shy of rising to the heightened standard necessary for employee speech to lose protection under the NLRA, and then use any resulting discipline as the grounds for an unfair labor practice charge.
Similarly, as discussed here, the NLRB has dramatically eased the standard under which it will find an employer’s maintenance of a workplace rule or policy violates the NLRA, again potentially establishing a predicate unfair labor practice to justify compelling card check recognition.
In other words, the practical effect of the Board’s decision is that, in many circumstances, the right to a secret ballot may be lost even where the unfair labor practice has been fully remedied and there is no showing that a free and fair rerun election would not best demonstrate employee sentiments.
In light of the potential severe consequences of even a single unfair labor practice, employers are encouraged to proactively train managers and supervisors on NLRA compliance. Additionally, prudent employers will immediately review all policies, handbooks, and other workplace rules to ensure that a potentially overbroad rule cannot be used as the basis for an unfair labor practice finding (see our prior alert here).
Employers who do receive a demand for recognition and desire a secret ballot election are encouraged to immediately contact labor counsel as the Board has indicated that it will normally require an employer to file its petition for election within two weeks of the union’s demand for recognition.
Our team of dedicated labor and employment professionals has extensive experience in training managers and supervisors on unfair labor practices, ensuring workplace rules and policies are compliant with NLRA requirements, and, more broadly, advising clients who are actual or potential targets of organizing campaigns. If you would like to discuss any of these matters, please reach out to the authors or your DLA Piper relationship partner.