HR Matters

Are unions making a historic comeback? The United Auto Workers union is simultaneously on strike against General Motors, Ford, and Stellantis for the first time in American history, California’s legislature passed a bill that allows legislative workers to join a union, and DHL drivers recently secured significant salary increases. The National Labor Relations Board (NLRB) has been equally busy after releasing two landmark decisions, overturning decades of precedent.

The NLRB revived the 2014 “quickie election” rules in an August 24, 2023 decision. The new rule does exactly what you think: it speeds up the entire process. The new timeline takes effect on December 26, 2023 and notable changes are noted below:

• The pre-election hearing will only be eight calendar days from the service of the notice of hearing.
• Regional directors can only postpone pre-election hearings by up to two days, rather than an unlimited time.
• The non-petitioning party’s (usually the employer) statement of position will be due seven calendar days after the service of notice.
• Petitioners (usually the union) will now respond orally at the pre-election hearing rather than having to submit a written statement of position three business days before the hearing.
• Employers will only have two business days to post and distribute a notice of petition for election to employees, rather than the previous five business days.
• Elections are to be scheduled at the “earliest date practicable” as the 20-business day waiting period was eliminated.
• Don’t blink or you will miss a deadline, or even the election.

But wait! There’s an even bigger union win to discuss. The NLRB also announced a new decision that overturned 50 years of precedent and upended the election process. The new standard from the Cemex Construction Material Pacific decision requires that when a union presents a demand to be recognized, the employer must either:

1. Recognize the union without an election and bargain with it accordingly; or
2. File a petition for election with the NLRB within two weeks of receiving notice.

If the employer does not take one of these steps within two weeks, the union may file an unfair labor practice charge (ULP). If the NLRB finds the employer committed a ULP, it will issue a bargaining order requiring the employer to recognize the union and participate in bargaining without an election.

Even more importantly, the NLRB ruled that if an employer commits even one ULP that would result in setting aside the election, there will be no re-run elections. Instead, the NLRB will issue a remedial bargaining order requiring the employer to recognize and bargain with the union. These Cemex changes are not only going to be applied moving forward, but will be applied to all cases that are currently pending.

You read this correctly: The NLRB is essentially flipping the union election process on its head. Instead of requiring the union to prove majority status, employers would be forced to prove the union does not have a majority. The union will (quite literally) hold the cards.

If you’re reading this and thinking “This will never happen to my company,” think again. The vast majority of cases we handle before the NLRB involve union-free companies. The NLRB is not like other agencies. They move quickly and with little regard to other important things happening at your business or in your life.

What should you do now?

1. Recognize that things have changed and your business may be vulnerable to a union or a disgruntled current or former employee with an axe to grind.
2. Conduct a vulnerability audit in conjunction with an experienced labor attorney. Yes, we know that sounds a bit self-serving, but it is essential that this audit be protected by the attorney/client privilege and conducted by an attorney who understands how the NLRB works.
3. Understand what is and is not a ULP so that you know where the “line” is, and that you stay on the right side of it.
4. Train your management team. It’s also best for this to be done by an experienced labor attorney so that the training is protected by the attorney/client privilege.

If you find yourself wondering “What is a ULP and how do I avoid one?” or “How do I know whether a union is demanding recognition?” Bricker Graydon’s labor & employment team is here to assist. Our team is available to provide trainings and union awareness audits to keep all employers and their management team up to date on best practices.