Last week the National Labor Relations Board (NLRB) issued its long-anticipated decision in Cemex Construction Materials Pacific LLC and also issued a new rule changing union election procedures.

In the Cemex case, the NLRB held that when a union requests recognition based solely on majority support by way of union card sign-off, the employer is now forced to request an election within a short period of time – so far so good.

But this decision also held that, if in their opinion, the employer then committed any unfair labor practice that might have previously caused the redo of the election, the Board could instead order that the union wins. The employer is now organized and must bargain, without holding a redo of the vote for or against the union. This decision changes 50 years of NLRB precedent.

So, an Executive Branch agency (the NLRB), can now, just because it sees some type of union vote election chicanery that they do not like, take away the vote from the workers and unilaterally order a win by the union. It sounds like a threat to democracy in the world of union organizing – brought to you by the Democratic run Administration of Joe Biden. Does anybody else see the irony in this?

If the PRO Act (Protecting the Right to Organize Act) could ever get passed, it would statutorily change union organizing rules, so the union walks in, and the employer has virtually no say in whether its workers become organized or not. Absent that radical change to labor law, the NLRB is in turn changing its rules to go there anyway. Today’s NLRB works on the premise that all employees want a union, and its only because of employer interference, otherwise every employer would be organized.

This decision lowers a standard set in a U.S. Supreme Court case called Gissel. The new standard allows the NLRB to order an employer to bargain when its unfair labor practice warrants it. The NLRB could order the employer to bargain instead of holding a rerun election. Previously the NLRB could only dismiss the election petition and issue an order to bargain if an unfair labor practice made it unlikely a fair election could be held in the future.

On Monday, just four business days after Cemex, Trader Joe’s United, the union organizing some of Trader Joe’s stores in New York, filed a request for a bargaining order under the Cemex decision. The union lost an election in a tie vote earlier this year and is using the Cemex decision to step around that vote by alleging breaches of Section 8 of the NLRA. Labor Relations News reports at this point it is unclear how the NLRB will respond to this request.

Also introduced last week was a new Final Rule altering the union election process to further expedite organizing. The Final Rule issued August 24^th and taking effect December 26, 2023, shortens the resolution of representation cases in front of the NLRB, reduces the time an employer may prepare for a pre-election hearing, expedites when an employer must file a statement of position, eliminates the requirement for the petitioning party to file a response statement, and reinstates other Board provisions that allow for “ambush” or “quickie” elections. This shortens the time between filing the petition and holding the election. This improves the chances of voting in a union, and unions are winning elections at a rate of over 75% these days.

Last week’s Final Rule comes from a long line of procedural rules for challenging union representation elections starting in 1961. A big change to these rules came in 2014 under a Democratic majority in the NLRB that removed a 25-day waiting rule between when the election is called for and when it then occurs. This was then dubbed the “ambush” or “quickie” election rule because it did not give the employer time to make their case against unionization with its workers once the union jumped up with the necessary number of signed union cards to hold the election. In 2019 the Trump NLRB issued a new Rule that “relaxed several deadliness and expanded pre-election briefing” allowing time for the employer to respond to a union drive that they may not even have known was happening. Ergo the terms “ambush” or “quickie” election.

The Rules released last week shorten the time for the pre-election hearing down from 14 to 8 days from the service of Notice of Hearing. A Regional NLRB Director does not have as much discretion over postponement of the hearing, and the hearing now will only address whether a question of representation exists.  Other questions such as whether a worker is eligible to vote or what is the appropriate bargaining unit will no longer be litigated before the election. Another change requires the employer to post a Notice of Petition for Election within two business days after service of the Notice of Hearing instead of five days as previously allowed. Other changes to the Rule were also made that are designed to shorten the period that the employer would use to counter what the union organizers had weeks, months or longer to say at their leisure.

Together the Cemex case and changes to NLRB procedural rules make it that much easier for a union to organize an employer without the mess and fuss of allowing the employer’s side of the organizing argument to be heard by the people that will be affected most, their workers. Seyfarth Shaw reports that so far this year 58,000 workers have been unionized through June which is 15,000 more than the same period last year.

Sources:

Seyfarth Shaw. “Ambush” or “Quickie” Elections Are Back in Full: NLRB Issues Union-Friendly Elections Regulation (8/25/2023)

Law 360 Employment Authority. NLRB Changes Rules But Stops Short of Restoring Joy Silk (8/25/2023) and Unions Win Under NLRB’s Shift of Bargaining Order Standard (8/25/2023)

Labor Union News. First Cemex Bargaining Order Requested on Behalf of Trader Joe’s United. (8/29/2023)