The National Labor Relations Board (NLRB) now requires employers to quickly file any challenges to a union’s demand for recognition, and if an employer commits an unfair labor practice (ULP) that would justify setting aside an election result in the employer’s favor, the Board will require the employer to proceed straight to bargaining with the union rather than holding a new election to see if the union can win. Under the National Labor Relations Act (NLRA), unions can confront nonunion employers with a demand that the employer bargain with the union. These demands are supported by evidence, normally in the form of union authorization cards that are signed by a majority of employees and purport to authorize the union to bargain on the employees’ behalf. Employers can agree to recognize and bargain with the union or file a petition for an election, known as an RM petition, to challenge whether the union has majority support. Most employers choose to file the petition, hoping they can win an election.
The Board’s recent decision clarified that employers must promptly file their RM petitions, or else the Board won’t consider them to be valid. The Board said employers normally must bring their RM petitions within two weeks of the union’s demand for recognition, although an employer may present evidence, such as unforeseen circumstances, to justify a longer delay. The Board also decided that if significant ULPs are committed by the employer that would justify nullifying an employer victory in an election, the Board will now require the employer to automatically bargain with the union, rather than get a new election. In the case decided by the Board, the employer committed more than 24 ULPs before and after the election, including threatening employees with plant closures and job losses, engaging in surveillance, interrogating them about union activity, prohibiting them from talking with union organizers or displaying pro-union paraphernalia, and hiring security guards to intimidate employees immediately before the election. Previously, these actions would have justified a new election, but under the Board’s new framework the employer was forced to recognize and bargain with the union (Cemex Construction Materials Pacific, LLC, NLRB, August 2023).
Tips: This decision will make it easier for unions to organize. Employers will need to act almost immediately if they plan to file an RM petition and challenge the union’s alleged majority support. Employers must also be extremely careful about not committing ULPs during or after an election. These processes are highly technical and the consequences of letting in a union can be transformational. It’s critical to work with subject matter experts who advise employers regularly about these issues. Thankfully, Vigilant members rarely face these circumstances, so Vigilant Law Group refers members in these situations to outside counsel for help. Please be sure to let your assigned employment attorney know right away if a union tells you they’ve established majority support so you have time to engage with outside counsel.
