by Last week, the National Labor Relations Board (NLRB) took two actions that will change an employer’s options when faced with union organizing activity. The first action was on August 24, 2023, when it made what the Board characterizes as procedural changes to its rule governing the handling of petitions by unions seeking to have a representation election. The new rule re-introduces the so-called ‘quickie elections’ available for a few years prior to 2019. Among other things, the new rule shortens an employer’s time to file a challenge to the petition’s validity before an election must be held. It also postpones challenges to the composition of the bargaining unit till after the outcome of the election. The 2023 rule will apply to representation petitions filed on or after December 26, 2023. The agency has provided a fact sheet on the changes to the procedures:
https://www.nlrb.gov/sites/default/files/attachments/pages/node-9421/2023-r-case-rule-fact-sheet.pdf.
The more significant change came a day later with the issuance of the Board’s decision in Cemex Construction Materials Pacific. In its decision, the Board created a new rule about when an election is not required to be held before an employer must recognize a union as the bargaining representative of the employees. The Cemex standard for employer recognition without a representation election can be summarized as follows:
Upon a union claim of majority employee support, as demonstrated by employee authorization cards or other means, the employer must either grant recognition without an election or file its own petition with the Board seeking an election. The Board will order mandatory union recognition if the employer does not take either of these steps in a timely fashion.
An employer may challenge the mandatory recognition order by filing and proving an unfair labor practice charge that the union did not have majority employee support or that the claimed bargaining unit was inappropriate. The full text of the Cemex decision can be found on the Board’s website at http://www.nlrb.gov.
Legal commentators agree that last week’s NLRB actions, taken together, will significantly accelerate the determination of union representation and mandatory bargaining between the union and the employer. Employers are encouraged to consult with their legal counsel on how these changes, along with recent NLRB-initiated constraints placed on employer actions, affect their practices and policies.
