by Imagine this situation: You just received notice that a union has filed an unfair labor practice charge against your company for refusing to bargain. You are sure there is some mistake—none of the company’s employees are represented by a union. None of the senior leadership has had any communications with the named union. However, the company next receives notice that the union has made a request to the National Labor Relations Board for a remedial bargaining order. A remedial bargaining order is a remedy available to the Board when an employer has committed an unfair labor practice in the process of union recognition. The Board can order the employer to recognize and bargain with the union without requiring an election or other process.
How can this happen if the company has not engaged with a union about representation?
According to the people enforcing the National Labor Relations Act (NLRA), it can happen if even one supervisor has had a conversation with an employee about union representation and the employee claims the majority of employees favor a union.
The Guidance Memorandum
On November 2, 2023, the NLRB’s General Counsel issued Guidance Memorandum 24-01 regarding the process required to establish union representation at a company. A Guidance Memorandum does not have the authority of a Board decision or a change in the law. It is, however, direction to regional directors and others in the labor agency on when and how to take action regarding employers and unions. Guidance Memorandum 24-01 was sparked by questions about how to apply a recent Board decision to current and upcoming Board cases. The decision, Cemex Construction Materials Pacific, was decided in August 2023. In Cemex, the Board held that a demand for union recognition based on the assertion that a majority of employees have signed union authorization cards must be adequately responded to by the employer, or the union may take steps to request a bargaining order. (See our August 28, 2023 posting, “The NLRB Just Fast-Tracked the Process of Determining Union Representation.”)
In the Memorandum, the General Counsel states that an employer confronted with an employee demand for union recognition asserting a majority of employees in an appropriate bargaining unit have signed authorization cards must do one of the following:
1) Recognize and bargain with the union;
2) File a petition within two weeks with the NLRB seeking an election or challenging the appropriateness of the bargaining unit; or
3) Await the processing of a petition for an election previously filed by the union (if it filed one).
If an employer does not do one of these three things, the union can file an unfair labor practice charge based on the company’s refusal to bargain and request a remedial bargaining order.
Employers should note three key interpretations laid out in the Memorandum that may change how they train supervisors and other leaders:
- A Verbal Demand for Recognition May be Enough: Under the General Counsel’s interpretation of the Cemex decision, verbal demands (e.g., a conversation or discussion) are to be treated the same way as written demands.
- A Statement to a Supervisor May Be Enough: The Memorandum states that the demand “does not need to be made on any particular officer or registered agent of an employer so long as it is on a person ‘acting as an agent of an employer.’” In support of this statement, the General Counsel cites a case where a warehouse manager was held to be an agent of the employer for purposes of accepting a demand for recognition, despite the man’s protest that he was without authority on this issue. This strongly suggests that anyone who meets the NLRA’s definition of ‘supervisor’ may be considered ‘acting as an agent of the employer.’
- Employers May Have Limited Options in Following Up on Assertions of Union Support: An employer may ask to view evidence of majority support, but neither the union nor the person asserting that a majority of employees have signed union authorization cards is required to hand over the cards to the employer. The General Counsel suggests that a neutral third party may be engaged to review the cards or other evidence of support but emphasizes that such a review doesn’t change the employer’s two week deadline to file a petition with the Board.
Employers Should Be Prepared
Employers should update their supervisory training to ensure that all levels of leadership and others who could be viewed as the employer’s agent understand what steps to take, including who to immediately notify, if they receive a verbal or written demand for union recognition.
The General Counsel’s Memorandum can be found at https://www.nlrb.gov/guidance/memos-research/general-counsel-memos.
