Last fall we discussed the monumental shift in the National Labor Relations Board’s (NLRB) procedures to allow unions to skip the lengthy election process if an employer fails to act upon demand for recognition. And predictably, with the ease of recognition and organization, unions are taking full advantage of the NLRB regressing decades in the past with procedures from over 50 years ago.
Since the NLRB published its decision in Cemex Construction Materials Pacific in August of 2023, 254 union election petitions have been submitted. That represents more than a 2,700% increase over the nine petitions filed in the six months prior to Cemex. For reference, over the last decade, employers have filed an average of 46.5 petitions per fiscal year. The current pace would result in more than 630 petitions in the 2024 fiscal year.
Cemex flipped the union election process on its head. Instead of requiring unions to prove majority status, employers are obligated to prove unions do not constitute a majority. The Cemex standard requires that when a union demands to be recognized, the employer must either:
- Recognize the union without an election and bargain accordingly; or
- File a petition for election with the NLRB within two weeks of receiving notice.
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 moves quickly and if a petition is filed today, you could have a union within weeks.
What Should an Employer Do?
- Recognize the current aggressiveness of the NLRB. Your business may be vulnerable to a union or a disgruntled current or former employee with an axe to grind.
- Conduct a vulnerability audit in conjunction with an experienced labor attorney. If there are issues, fix them prior to an employee believing they need a third party to step in.
- Understand what is and is not a Unfair Labor Practice (ULP) so you know where the “line” is, and how to stay on the right side of it.
- Train your management team.
If you find yourself wondering “What is a ULP and how do I avoid one?” or “How do I know if a union is demanding recognition?” Bricker Graydon’s Labor & Employment attorneys are here to assist. Our team is available to provide trainings and union awareness audits to keep all employers and their management teams up to date on best practices.
*Tommy Rogers is a law clerk and not licensed to practice law.
