NLRB further erodes employer rights and promotes unionization

Louis P. DiLorenzo

The National Labor Relations Board (NLRB) continues to drastically change the law and tilt the playing field against employers and in favor of labor unions. In December, the Biden NLRB issued new rules governing the unionization process that mark a return to the “quickie elections” from the Obama era. In addition, the NLRB issued a landmark decision in Cemex Construction Materials Pacific (372 NLRB No. 130) that seriously undermines both employer and employee rights by disfavoring secret ballot elections. For employers wishing to remain union free, this one two punch means employers must be proactive and not merely wait to react to a union demand for recognition.

Under Cemex, unions can now more easily secure recognition from an employer based solely on signed union authorization cards, rather than garnering a majority of votes in a secret ballot election among the employer’s employees. Union authorization cards are often an unreliable indicator of true employee sentiments because of the potential for signatures being obtained through pressure tactics, card signers having incomplete or inaccurate information, and the lack of a private expression of employee sentiments. The secret ballot election process, a cornerstone of a democratic system of government, is designed to cure this by affording each employee the opportunity to make a private decision about the kind of workplace that employee wants after an opportunity to consider arguments both for and against unionization.

After the union demands recognition, the employer must recognize and bargain with the union, or file an NLRB petition for an election within two weeks of the union’s demand. If the employer does not file timely for an election (and assuming the union has not also commenced an election proceeding), the employer is at risk of a section 8(a)(5) unfair labor practice (ULP) for declining to recognize the union based solely on the request for recognition. Any defense related to a claim that the union lacks majority status or that the union’s bargaining unit designation is inappropriate would be litigated in that ULP proceeding. The current Board law on both of these issues heavily favors the union. Thus, the employer’s failure to act promptly when a union demands recognition will eliminate the employees’ fundamental right to choose their representative through a secret ballot election.

Moreover, after either party files an election petition, if the employer commits any unfair labor practice that would historically result in setting aside the election and conducting a second election after other remedial actions were implemented, now the election petition will be dismissed, and – rather than re-running the election – the Board intends to order the employer to recognize and bargain with the union. Thus, in any union organizing campaign, it appears that the presumptive remedy for even minor or isolated violations by the employer will be a bargaining order, rather than a re-run election, in cases in which the union obtained signed cards from a majority of employees, without regard to the circumstances under which those cards were obtained. Significantly, the unfair labor practices that could trigger Board-ordered union recognition are not necessarily related to the organizing campaign and could theoretically, for example, arise from the NLRB’s recently expanded scrutiny of handbooks and other employment policies.

The quickie election rules that recently went into effect shorten any time the employer will have to educate its employees on the track record of the union involved, the disadvantages of joining this union, the Company’s position on unionization and their legal right to choose not to join. Once the petition is filed, this is the new timetable:

  1. Posting of Notice of Petition for Election – 2 business days after receiving the Petition (with notice of hearing)
  2. Submission of Employer’s Statement of Position – 1 day before the hearing, at 12 PM (7 calendar days from receipt of Notice of Hearing letter)
  3. Scheduling of Pre-Election Hearing – 8 calendar days from when employer receives Notice of Hearing letter
    • Can be postponed up to 2 business days for “special circumstances” and more than 2 business days for “extraordinary circumstances”
  4. Responsive Statement of Position – orally at the start of the hearing
  5. Post-Hearing Briefs – only allowed with the regional director’s “special permission”
  6. Scheduling of Election – “earliest date practicable” (no longer a 20 business-day waiting period)
  7. Filing of Voter List – 2 business days after decision and direction of election or execution / approval of stipulation
  8. Posting of Election Notice – 3 full business days prior to 12:01 AM on the day of the election

Because this timetable is so short, the Union are demanding recognition and giving the Company three days to respond or they are filing their own petition and activating this very short fuse.

As a result, the paradigm has shifted. Employers serious about remaining union free should not wait, but be proactive and consider taking steps including, the following.

  1. Introduce information during the hiring and orientation process.
  2. Make sure your handbook and policies appropriately and lawfully address no solicitation and no distribution rules during working time and on Company property.
  3. Make sure the handbook and policies do not run afoul of other NLRB rules.
  4. Make sure all supervisors understand the Company’s position and are trained in the do’s and don’ts of organizing.
  5. Make sure positive employee relations programs are in place and HR and the supervisors coordinate these activities including for terminations and other discipline.
  6. Make sure communications channels exist and are regularly used so in the event of a petition, they can be called upon quickly.
  7. Make sure all employees, including supervisors, understand the Company’s position—whatever it is. Extra credit will be given if they understand the legitimate business reasons for the Company’s position.
  8. Make sure documents, such as job descriptions, reflect the ineligibility of confidential, supervisory or managerial employees the Company intends to claim are not eligible to be represented by a union.

There are many reasons, including two United States Supreme Court decisions, which do not support the results this pro-organized labor NLRB is trying to achieve—not on behalf of employees or employers. In addition, it looks as though the long existing deferral the Courts have given federal agencies (known as Chevron Deferral) is about to come crashing down. The odds makers believe the Supreme Court has had enough of the agencies ignoring existing law and legislating their own rules, overruling Congress and the courts and acting arbitrarily to achieve a desired political result. So someday, it is likely that Cemex and these quickie election rules will be gone. However, in the meantime, this new NLRB reality is problematic. According to Blumberg Law, the one-two punch is having some real impact. Over the last decade, there have been about 47 petitions filed by management. In fiscal year 2024, such petitions are on track to be over 600, a 13 fold increase. So, if you wish to remain union free, do not sit back and wait, and be careful out there!

Louis P. DiLorenzo, is a partner at Bond, Schoeneck & King and lives in White Plains and manages Bond’s Westchester office and co-manages its New York City Office. Bond has some 85 labor and employment attorneys representing management in the various aspects of employment law including employee benefits, discrimination issues, wage and hour matters, labor negotiations, arbitration and handbook and policy drafting.

By Louis P. DiLorenzo
Bond, Schoeneck & King
10 Bank Street
White Plains, New York
ldilorenzo@bsk.com