On August 24, 2023, the National Labor Relations Board (NLRB) issued a Final Rule amending its procedures for union elections. Then, on August 25, 2023, the NLRB issued a decision in Cemex Construction Materials Pacific, LLC. (Cemex) which created a new framework for determining when employers are required to bargain with unions without a representation election. This article will address these recent updates.
Final Rule – Procedures for Union Elections
The Final Rule, which takes effect on December 26, 2023, overturns many Trump-era regulations, and returns the processes to those in effect under the Obama-era NLRB (so called “ambush elections”). According to the NLRB, the recently amended rule “will meaningfully reduce the time it takes to get from petition to election in contested elections and will expedite the resolution of any post-election litigation.”
Key highlights of the changes include:
- The pre-election hearing will now be scheduled to open eight calendar days from the service of the Notice of Hearing (down from fourteen business days). Additionally, the regional directors have limited discretion to postpone this hearing.
- The pre-election hearing will only address issues necessary to determine whether an election should be conducted and will no longer include issues of eligibility and inclusion in an appropriate unit.
- Employers must post the Notice of Petition for Election within two business days after service of the Notice of Hearing (previously five business days).
- The non-petitioning party’s Statement of Position will be due seven calendar days after the service of the Notice of Hearing.
- The petitioning party will not be required to respond to the Statement of Position in writing before the pre-election hearing but can respond orally at the start of the pre-election hearing.
- The elimination of the twenty-business day waiting period between the issuance of the decision/direction of election and the election itself. Now, the regional directors will schedule elections for the “earliest date practicable” after issuance of the decision/direction of election.
- Written briefs after the pre-election hearing or a post-election hearing will only be permitted if the regional director or the hearing officer determines that they are necessary.
The Cemex Decision
Cemex involved an organizing drive of about 386 ready-mix cement drivers in Southern California and Las Vegas, Nevada by the International Brotherhood of Teamsters (Teamsters). The Teamsters filed a petition for election with the NLRB after they had gathered 207 authorization cards. In the election, employees voted against the union 179-166. The Teamsters objected to the election, claiming that Cemex engaged in many unfair labor practices. On review, the Administrative Law Judge found the employer had in fact engaged in unfair labor practices, including:
- Threatening employees with discipline or termination for having union stickers on their hard hats;
- Stating that the company would close or move the trucks to another site;
- Telling employees that they could be terminated if they choose to unionize; and
- Terminating an employee because of her union activity, among other items.
The Administrative Law Judge ordered a rerun of the election. On appeal, the NLRB General Counsel argued that a bargaining order (which is an order that requires the employer to recognize the union and begin bargaining negotiations) was the appropriate remedy instead of a rerun of the election.
The NLRB decided that when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative (via authorization cards), an employer must either (1) recognize and bargain with the union; or (2) promptly file an RM petition seeking an election. The NLRB normally interprets “promptly” to require an employee to file its RM petition within two weeks of the union’s demand for recognition. An RM petition is an election petition filed by an employer to determine support for a new union (or continuing support for an existing union). Importantly, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed and, instead of another election, the NLRB will order the employer to recognize the union and bargain with it.
Impact on Employers
We will continue to see more pro-union rules and decisions from the current NLRB. Given that, employers must be prepared for potential organizing efforts in the workplace. It is very important to know the new timelines and procedures in both the Final Rule and the Cemex decision. Employers should also review workplace policies to ensure compliance with the ongoing updates from the NLRB. Employers should also consider training management on these updates, as well as the standard compliance matters during potential organizing campaigns. Stall Legal is available to assist on all these matters. As always, if you have any questions on this topic, please contact your Stall Legal attorney.