On August 25, 2023, the National Labor Relations Board (NLRB) issued a decision that significantly narrows employers' options in contesting union organizing efforts through secret ballot elections. The case, Cemex Construction Materials Pacific, LLC, reverses the NLRB's 1971 Linden Lumber decision, which gave employers the right to decline to recognize a union based on authorization cards alone and instead insist on an NLRB-supervised, secret ballot election. Employers will need to rewrite their playbooks for responding to organizing campaigns.
Union organizing efforts will often begin, from an employer's point of view, with a union asserting to an employer that a majority of employees in a proposed bargaining unit have signed authorization cards authorizing the union to represent them. Since 1971, however, employers have not been obligated to recognize a union on the basis of authorization cards alone. Instead, employers could insist that employee preferences be tested through a secret ballot election.
Under this long-established paradigm, unions that lost elections often proceeded to challenge the results by asserting that the employer committed unfair labor practices that tainted the outcome of the election. The NLRB took a flexible approach to remediating an assertedly tainted election: In cases where it found "severe and pervasive" unfair labor practices, it might issue a bargaining order, under which the employer would be required to recognize the union; but in other cases, it might simply order a second, re-run election.
After the August 25, 2023 decision, however, this will change. An employer presented with authorization cards may still request an election, but only by "promptly" filing its own petition for an election (usually within two weeks of a demand for recognition). Perhaps more significantly, if an employer then wins the election but is found to have committed any unfair labor practice requiring that the election be set aside, the NLRB will issue a bargaining order. An employer will not have the chance to win a second election; it will automatically have to recognize the union. Notably, the decision applies retroactively and impacts pending cases currently under review.
In light of these changes, it will be incumbent on employers to be prepared to respond to an organizing campaign promptly and carefully. The NLRB's decision has transformed the playing field when it comes to union organizing campaigns, and employers will need to adjust accordingly.
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