Unions won 95 percent of the elections involving groups of 500 or more workers that occurred in the first half of 2023. Overall, unions won 662 elections during that same period – covering over 58,000 workers, the greatest first-half win total for unions in nearly 20 years. In the second half of 2023, the National Labor Relations Board (the “Board”) made two changes to the union organization process that will likely aid unions seeking further gains in 2024. First, the Board completely altered the process for union organizing by, in some situations, placing the burden on an employer to seek an election and strengthening the consequences of unfair labor practices committed by an employer during an organizing campaign. Second, the Board issued new procedural rules, which go into effect on December 26, 2023, designed to reduce the time between when a petition for election is filed and when the election occurs. These changes require employers to immediately prepare for union organizing regardless of the perceived risk of employees organizing. Employers that are caught flat-footed by union organizing and ignorant about the rules for organizing likely will suffer the wrath of the Board’s union-friendly rules.

A. In Cemex, the Board Creates a New Process for Union Organizing and Stiffens the Penalties for Employers that Unlawfully Interfere with Union Organizing.

At the end of August 2023, the Board decided Cemex Constr. Materials Pac., LLC, 372 NLRB No. 130 (Aug. 25, 2023), which implemented two changes for union organization and the employer’s obligation to bargain with a union about the terms and conditions of employment:

1. If a union requests that an employer recognize and bargain with it, the employer must bargain with the union or petition the Board for an election. If the employer does neither option, then it risks the union filing an unfair labor practice charge for failing to bargain and the Board ordering it to bargain with the union without an election.
2. If the Board conducts an election to determine whether the union has support from the majority of employees, the Board may order the employer to recognize and bargain with the union if, during the campaign, the employer commits a “single violation” of the Act that “interferes with employee free choice and undermines the reliability of an election as an indicator of employees' true preferences.”

These changes are significant departures from the previous framework for union campaigns and require management’s immediate understanding how the new rules will work in practice.

1.       Changes to Union Organizing Process.

Under prior rules, if a union wanted to represent an employer’s workers, it had two options. Under the first, largely futile option, the union could demand the employer recognize it as the representative for employees and demand the employer bargain with it. The employer could refuse this demand with no consequences. Usually, a union would choose the second option and file a petition with the Board to represent the employees. The Board would then conduct an election to determine whether employees wanted the union to represent them for the purposes of collective bargaining. If a majority of employees who vote in the election vote for the union, the Board certified the union as the representative for employees and ordered the employer to bargain with it.

The new rules make option one viable. Now, in response to a union’s demand that the employer recognize and bargain with it, the employer has three options:

1. The employer may recognize the union and bargain with it about employees’ terms and conditions of employment.
2. The employer may “promptly” petition the Board for an election to determine whether the majority of employees in an “appropriate” unit actually support the union. The Board said it would “normally interpret” the word “promptly” to mean within two weeks of the union's demand for recognition, which suggests an employer’s time to petition for an election could be longer or shorter than two weeks depending the circumstances. (We would not recommend campaigning against the union after a union demands recognition and waiting until the last day of the two-week period to petition for an election.)
3. The employer may choose not to recognize the union or petition the Board for an election within two weeks, but it does so at its peril. The union may file an unfair labor practice charge with the Board and ask the Board to force the employer to bargain with it. While litigating the charge, the employer may argue the union does not have the support of a majority of the employees, the union engaged in misconduct when it collected union authorization cards, or the unit the union seeks to represent is not appropriate. An employer likely will not succeed if it chooses this option. If the employer is unsuccessful, the Board will also order it to remedy any unilateral changes it made after the union’s demand for recognition without bargaining with the union, which could mean back pay and reinstatement for employees discharged after the demand and restoring any work rules it changed.

In response to a union’s claim that it represents a majority of the employees, an employer may consider asking for proof, such as union authorization cards signed by a majority of employees. This is a risky option because doing so may constitute implicit agreement to union representation if the informal card check proves the union does have support from a majority of employees. The Board suggested it would continue to order an employer to bargain with a union if “an employer had previously agreed to recognize and bargain with the union based on the union's showing of majority support and then reneged on its agreement” and cited a previous decision, Snow & Sons, 134 NLRB 709 (1961), in which the Board found an employer’s review of union authorization cards signed by a majority of its employees, which the employer believed was not binding, obligated the employer to bargain with the union.

Most employers faced with a demand to bargain will challenge the union’s claim of majority support by petitioning the Board for an election, which is called an RM petition. When an employer files an RM petition, no evidence of representation by the union claiming a majority is required. By contrast, if a union petitions the Board for an election, it must prove that at least 30 percent of the employees in the unit want the union to represent them. An RM petition eliminates this burden for the union.

An RM petition also potentially avoids a hearing on the appropriateness of the unit. While the Board suggested an employer may litigate the appropriateness of a unit in an RM petition, it is unclear how this would work because the standard obligates an employer to consent to an election if the union involved agrees with the allegations in the petition. In an RM petition, the employer would need to describe the unit involved that the employer believes is a proper unit and explain in a position statement why the unit sought by the union in its request for recognition is not appropriate. If the union agrees with the employer’s description of the unit and believes it has majority support within that unit, it may consent to the election and avoid a hearing on the appropriateness of the unit. This leaves challenging the appropriateness of the unit as a defense to a charge of unlawful refusal to bargain, which is not an appetizing option.

Since these changes were announced on August 25, 2023, unions continue to file petitions for elections more often than employers, which suggests that the more practical change resulting from Cemex will be the stricter penalties for unlawful interference with union organizing.

2.       Changes to the Penalties for Unlawful Interference with Union Organizing.

Under prior law, where a union has achieved majority support and an employer engages in unfair labor practices that “have the tendency to undermine majority strength and impede the election processes,” the Board “should issue” an order for the employer to bargain with the union without an election if “the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.” This standard commonly resulted in an order for another election unless the employer committed egregious violations.

Under the new standard, when an unfair labor practice is committed, the Board will simply force the employer to recognize and bargain with the union. The Board clarified “the new standard does not give employers a free pass to commit even a single violation of the Act if that single violation is one that interferes with employee free choice and undermines the reliability of an election as an indicator of employees' true preferences.” This means if an employer commits a single unfair labor practice during an election, the Board may order it to bargain with the union no matter the results of an election.

The Board said an order to bargain will not be justified “whenever an employer commits any unfair labor practice during the critical period prior to an election, no matter how attenuated the impact of the employer's conduct upon the validity of the election.” Rather, the violation must relate to the validity of the results. Despite this clarification, the Board’s message is clear: an employer may not aggressively campaign against a union with the expectation that, at worst, the Board may order another election. Instead, the Board is clearly seeking to deter employers from engaging in any action that could even be close to the line of a violation because a single violation may ruin the employer’s chances of prevailing in the campaign.

B. The Board Announces New Rules Designed to Limit Time to Persuade Employees Not to Unionize After a Campaign Begins.

On August 25, the Board published a Final Rule that will reduce the time between when a union election petition is filed and the date the election occurs. The new rule returns to the Board’s “quickie election” rules from 2014 and into effect on December 26, 2023.

Employers generally want more time between when an election petition is filed and the election is held. Unions may spend months organizing employees and gaining support. When a union files a petition for an election (or requests that an employer recognize them without an election), the union likely has the most support from employees it can expect to achieve. The more time available to an employer to educate employees on the consequences of unionizing, the more likely the union will lose support from the majority of employees.

The Board’s final rule means less time between when a petition is filed and when the election will occur, a conclusion confirmed by the Board’s General Counsel, Jennifer A. Abruzzo who explained the new rules would “meaningfully reduce the time from petition filing to election.” After similar rules were enacted in 2014, the time between petition and election was reduced from a median of 38 days to only 23 days.

The reduction in time makes it essential that employers are prepared for union organizing campaigns because they will not have the luxury of time once a petition is filed. We recommend employers take steps now – when they have significantly more freedom and time – to respond to and address the issues that motivate a union organizing campaign, particularly where the employer identifies organizing activities before a petition for an election is filed or a union claims it has the support of most employees and demands bargaining. Employers that want to remain union-free should consider implementing the following recommendations in consultation with legal counsel:

• Survey employees’ satisfaction in a manner that will reveal patterns of satisfaction (or dissatisfaction) among shifts, job positions, departments, and lines of supervision. This helps identify where changes to management, compensation, or communication to improve satisfaction are needed. (The survey should not ask about unions.)
  
• Evaluate whether your employees’ wages and benefits are competitive with the market (or similar facilities within your operations). If not, fix them now because it will be too late after a union demands recognition.
  
• Assess your managers’ strengths and weaknesses as communicators and leaders. Management failing to effectively address employees’ questions or complaints is the primary catalyst for union organizing. If management does not address employees’ questions or complaints, employees will seek someone—such as a union—who will. Managers should be trained on effective communication, and employers should leverage excellent communicators to deliver the employer’s messages about unions, union authorization cards, and other messaging designed to keep the employer union-free.
  
• Train managers to identify and IMMEDIATELY report early signs of union organizing to designated representatives (legal counsel or human resources), including:
  - Employees who rarely interact/have no relationship suddenly meeting often.
  - Employees soliciting union authorization cards or distributing information about unions.
  - Employees asking you questions about unions or union organizing.
  - Employees meeting on working or non-working time and quickly dissipating when they observe management.
  - Be alert and vigilant. While managers cannot surveil or interrogate employees to discovery early signs of union organizing, they can be on the lookout for them. Too often, employers are surprised by union organizing because they fail to identify the early signs, to take the signs seriously, or to report the organizing to other managers.

• Lawfully discuss unions and union organizing with employees. Managers must be trained on the dos and don’ts of talking about unions with employees. Succinctly, managers may not interrogate (e.g., poll) employees about their feelings about unions, promise benefits or threaten employees to persuade them not to organize a union, or surveil employees’ union organizing efforts. However, employers must also train managers on the less obvious unlawful actions (e.g., soliciting grievances).

• Educate employees about union authorization cards, which is a signed statement on a legal document from an employee that they want the union to be his/her exclusive bargaining agent. The Act gives an employee the right to sign or not sign a union authorization card. During non-working time, employees have the legal right to express their opinions to co-workers and share concerns about the impact of signed union cards.
• Immediately report union organizers trespassing on employer’s property, harassing employees, or disrupting any work.

• Advertise your benefits to employees. The risk of collective bargaining is that compensation and benefits could get better, worse, or stay the same. However, this risk does not seem substantial if employees do not understand the benefits available to them. Management must routinely advertise to employees the benefits and how those benefits compare to the market.

• Perform a community-of-interest analysis to determine your position on appropriate bargaining units to understand whether a group of workers share enough in common to constitute a proper bargaining unit. Coupled with the employee satisfaction survey results and effective front-line supervisors, employers can strategically evaluate units that will give them the best opportunity to succeed in a union organizing campaign.

• Develop a plan for responding to a union’s demand for bargaining that includes:
  - The leaders responsible for reviewing and approving messages to employees about the union. The group should not be so large that approving messages is cumbersome, but should include HR, benefits, operations, and legal counsel.
  - A plan for responding to a demand for recognition, including the factors that would cause the employer to recognize the union and begin bargaining, file an RM petition, or wait for the union to file a charge for failing to bargain.
  - A set of communications (or website) that has been reviewed by the leaders identified above and can be quickly distributed to management and employees that provides facts on union authorization cards, the benefits available to employees, and the risks of collective bargaining and strikes.
  - If a union requests bargaining because it claims it has support from the majority of employees and invites you to review the authorization cards they have gathered, you should not accept the invitation.