Historic NLRB Ruling Gives Workers Path to Unionize Without Having to Vote

In what some attorneys are calling the most significant change in federal labor law in a half-century, the National Labor Relations Board (NLRB) has issued new rules that put employers in the onerous position of being forced to recognize and bargain with a union—unless they take swift action to request an employee election and prevail in that election.

“These changes radically shift the legal landscape for companies,” Morgan, Lewis & Bockius wrote in a note to corporate clients, and “make it much easier for unions to organize.”

Even more ominously, Ryan Funk, a Faegre Drinker Biddle & Reath partner representing management, added that he anticipates “many employers will not realize that they must initiate this process on short notice and will become unionized without ever having an NLRB election.”

The NLRB, which has been chipping away at employer-friendly labor rules since Democrats regained control of the five-member board in 2021, casts the changes differently, saying the rules “remove unnecessary barriers to the fair, efficient, and expeditious resolution of representation questions.”

It’s a radical change from the past five decades. Today, unions file an election petition with the NLRB and show at least 30 percent employee support. The NLRB determines whether an election is appropriate and, if so, supervises a secret ballot election of employees.

But the new legal framework, set in the board’s decision in Cemex Construction Materials Pacific LLC issued in late August, shifts many of the burdens in union representation efforts to employers—and sets traps for any missteps.

The first trap is inaction. If the company decides after two weeks not to either accept the union or petition the NLRB to conduct an election, the board may automatically issue the company an order to bargain with the union. That’s unless the employer can prove subsequently that the union did not, in fact, have majority support of employees or can prove some other substantial unfair labor practice.

Employers are further imperiled by another trap in the new rule.  If an employer has petitioned the NLRB for an election, but commits any unlawful conduct prior to the election, it “will prompt the board to issue a mandatory ‘bargaining order’ requiring union representation,” notes Morgan Lewis.

“Cemex creates a new hair-trigger threshold that will prompt the board to issue a mandatory bargaining order based on any unlawful conduct that sets aside an election,” the law firm said.

“This decision is a game changer. Inevitably, this decision will result in unions representing employees in far more cases where an employer has not voluntarily recognized the union and the union has not won a board-conducted election,” Chad Horton, a former field attorney at the NLRB who now represents employers at Shawe Rosenthal LLP, said in a memo on the ruling.

“Cemex now provides an avenue for union representation premised solely on employer inaction following a demand for recognition, even if the employer did not commit a single unfair labor practice,” Horton added.

The new rule, slated to go into effect in late December, is expected to spark a firestorm of legal challenges from employers.

For labor, the new rules represent their biggest win since Joe Biden won the presidency in November 2020 and days later claimed to be the most pro-union president in U.S. history.

Since David Prouty’s swearing-in in August 2021 put the board under Democratic control, it has taken aim at a variety of longstanding, employer-friendly rules, such as one allowing companies to force workers to attend company meetings where management argues against unionizing.

“It’s a very important decision, and it’s an excellent decision from the NLRB,” Risa Lieberwitz, a professor of labor and employment law at Cornell University, said of Cemex. Lieberwitz pointed to a number of labor practices by employers that undermine efforts by unions to obtain majority support in an election. The new rule “creates a disincentive for employers to commit unfair labor practices.”

At the same time, the change allows employees to exercise their rights, helps create a more expeditious process, and still allows employers to determine whether there is indeed majority support for unionization, she said. “The NLRB recognizes that the current system is not working well.”

Not everyone sees it that way.

The current process, over the past several decades, no matter how dated, has given employees an opportunity vote on whether union representation is right for them, and “the process works,” said Trecia Moore, senior counsel at Husch Blackwell and a former NLRB investigator.

Moore said that under the new rules she believes most employers will file petitions for election so that they’re not at risk of having to collectively bargain without a vote ever occurring.

Though law firms have just begun to analyze the potential effects of the NLRB actions, they already see some proactive strategies.

One is to address concerns and issues that employees have now, which unions might otherwise seize on to win over workers. “Employers need to be engaged. We need to listen to our employees as to what they’re wanting,” Moore said. “If we’re doing the right things before a union can infiltrate, we don’t have anything to worry about.”

The law firm Vedder Price, in a client note, suggests employers “should examine their union-free and labor relations strategies to minimize their exposure to card-signing campaigns.” They might also conduct training and workplace audits to identify areas of risk and be ready to quickly respond, the firm added.

Horton advises companies to ensure management and supervisors immediately report when a union demands representation. Companies also need to full understanding of what they “can and cannot say” during a union organizing effort. Employers also need to review policies and employee handbooks, he added.

Morgan Lewis said employers now have a greater incentive to educate employees about the consequences of signing authorization cards. The law firm also recommends that, when employers receive a union demand for recognition, they request the union voluntarily share its evidence for majority support. That could be “invaluable” for employers as part of filing their petition requesting representation or in an unfair labor practice challenge against the union.

Employers will have a number of avenues to challenge a union, such as whether authorization cards are valid. They may question whether they were obtained through misrepresentation or even whether they still reflect employee sentiment in workplaces where there has been substantial employee turnover.

See also:

• Biden’s Regulatory Agencies Quietly Tilting Workplace Power Toward Employees
• Report Finds Conditions Favorable for the Growth of Unions

From: Corporate Counsel