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The NLRB updates its standards for unionizing a workplace

2023 was a year of robust union activity across the United States. Industries that had never unionized before, from exotic dancers to thrift-store employees, saw widespread organization and encouraged other workers to do the same.

Small businesses have had to navigate the ins and outs of union elections, which were recently shaken up by the National Labor Relations Board in a precedential decision that radically shifted the framework for union elections in favor of employee representation.

In light of this flurry of union activity, employers will want to prepare for the possibility of a union election in their own workplaces in order to avoid potential liability due to an unfair labor practice.

The Cemex case

One of the main guideposts of this past year was the Cemex Construction Materials Pacific LLC decision, which the NLRB released in August 2023. This decision changed the dynamic between employers and employees seeking to unionize.

The Cemex case involved a campaign to organize a bargaining unit of cement truck drivers and driver trainers led by the International Brotherhood of Teamsters. The employees voted against representation by a thin margin, but the union then filed charges alleging the employer had violated the National Labor Relations Act.

The NLRA provides protections for employees not only when they are unionized but also in certain scenarios when employees are not unionized, including when employees are engaged in a union election. Section 8 of the NLRA declares the instances in which employers will be charged with committing an unfair labor practice. One unfair labor practice under Section 8(a)(1) is “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 guarantees the right of employees to engage in concerted activity for mutual aid and protection, including to form labor unions. Under Section 8(a)(1), employers cannot interfere, restrain, or coerce employees who are attempting to form a labor union. Consequently, employers must exercise caution when confronted with employee attempts to unionize.

In the Cemex decision, the union more specifically alleged that the employer had engaged in “extensive unlawful and otherwise coercive conduct before, during, and after the election” that included threatening employees who appeared to favor union representation, engaging in surveillance of employees, restricting employees from communicating with union representatives, hiring security guards to intimidate employees, and more. An NLRB Administrative Law Judge found that the employer violated the NLRA and recommended setting aside the election.

The case was reviewed by the NLRB, which decided that the employer had so muddied the election process that the union should automatically have been found to have won. This differed from other cases in the past where the NLRB merely set aside and ordered a new election.

Guidance for employers

Cemex resulted in a new election framework for employers. Under the updated framework, when a union requests to be recognized based on having a majority of employees’ support, the employer must either (1) recognize the union and begin bargaining with the union or (2) immediately file a petition for election. If the employer chooses to file a petition, and is later found to have committed an unfair labor practice, the NLRB will dismiss the employer’s petition and order that the union be recognized as the sole bargaining representative.

In addition to the framework provided by Cemex, in November 2023, the NLRB’s General Counsel issued a guidance memorandum to explain its interpretation of the Cemex case. While the Cemex decision is legal authority, the memorandum is only the opinion of the prosecutorial division of the NLRB. That means the memorandum itself is not legally binding, but it still provides insight as to how the NLRB will attempt to enforce the decision.

What counts as a union’s demand for recognition?

According to the General Counsel, an informal, oral demand for recognition made to anyone acting as an agent of the employer will satisfy the requirement. Once this informal, oral demand occurs, as stated above, the employer must make a choice – either (1) recognize the union and begin bargaining, or (2) immediately file a petition. Even a demand made to a “manager” who is not an “employee” under the NLRA will count, regardless of the manager’s knowledge or involvement in labor relations.

How long does an employer have to make its choice?

The memorandum states that the employer has two weeks following a demand to either recognize the union or file a petition. If the employer fails to do so within this time frame, then a union request to the NLRB for a bargaining order will likely be granted.

What types of unfair labor practices require setting aside an election?

The General Counsel’s guidance states that one violation of the NLRA could be sufficient to warrant a bargaining order.

The overarching lesson of the Cemex decision was to tread carefully when faced with employee unionization efforts.

Will 2024 be another year of unionization?

Regardless, employers should prepare. In addition, the NLRA’s rules are not always intuitive for employers, so seeking the advice of a trusted advisor is crucial to avoiding an unfair labor practice charge.

Nick Ball is a labor and employment attorney with Barran Liebman. Hannah LaChance is a law clerk with Barran Liebman.