With no chance of passing the Protecting the Right to Organize Act, we predicted that the Biden administration would seek to achieve pro-labor reforms through the National Labor Relations Board’s (the “Board”) rulemaking and adjudication processes. This prediction has proven true. The Board under the Biden administration has sought to interpret the National Labor Relations Act (the “Act”) to improve unions’ chances of success, which has emboldened unions and resulted in organizing gains.

Unions won 80 percent of the elections held so far this year. During the first half of 2023, unions won 95 percent of elections involving groups of 500 or more workers. Over this same timeframe, there have been 662 elections won by unions – covering more than 58,000 workers. These statistics represent the greatest first-half win total for unions in nearly 20 years.

On the heels of these recent successes, the Board announced three significant changes to rules that will make it even easier for unions to organize employees. Employers must act now to evaluate existing work rules and develop strategies for responding to more aggressive union organizing that will no doubt result from these changes.

1. Employer’s Policies are Unlawful If an Employee Could “Reasonably Interpret” the Policy as Interfering with the Act.

In 2004, the Board ruled that an employer’s policy, such as a confidentiality or civility policy, violates the Act if an employee could reasonably construe the policy as preventing them from exercising their rights under the Act. The Board has often considered whether a policy is lawful after an employer enforced it against an employee. As a result, managers must understand employees’ rights under the Act and when a policy may conflict with those rights.

Employees’ rights under the Act include the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection,” or refrain from engaging in these activities. The Act’s protection of “concerted activities” for “mutual aid or protection” covers a broad spectrum of activities by all employees, including those in nonunionized workforces. For example, the Act protects those who compare compensation, complain about workplace policies, or advocate for political changes that could impact the terms or conditions of employment (e.g., increased minimum wage).

In 2017, the Board changed the rule that a policy is unlawful if an employee could “reasonably construe” it to prevent them from exercising rights under the Act. Instead, the Board adopted a test that weighed the employer’s legitimate reasons for the rule and balanced it against whether the rule could also have a chilling effect on the employees’ right to organize or otherwise engage in protected concerted activity.

In Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023), the Board returned, with some differences, to the previous standard established in 2004. Under the new standard, a policy is unlawful if it has a “reasonable tendency” to chill employees from exercising their rights. The Board’s new analysis focuses on whether an employee could reasonably interpret the employer’s policy to have a “coercive meaning,” even if noncoercive interpretation of the policy is also reasonable. The Board clarified it would interpret the rule from the perspective of an employee who is subject to the policy and economically dependent on the employer, and who also contemplates engaging in protected concerted activities. An employer may defend the policy by proving it advances a legitimate and substantial business interest and the employer cannot advance that interest with a more narrowly tailored policy. This defense will be difficult to prove because it requires the employer to show a more narrowly tailored policy will not protect its legitimate interests.

Most policies do not conflict with the Act. Policies involving attendance or requesting leave will rarely conflict with the Act. However, managers must be mindful of policies concerning confidentiality, recording in the workplace, civility, solicitation and distribution of nonwork-related materials (e.g., charitable solicitations), and use of employer property. These policies may conflict with employees’ rights under the Act depending on the language used in the policy. My colleague, Chelsea Thompson, addresses the Stericycle decision in the context of best practices for employee handbooks, which is included in this edition of SuperVision.

Suffice it to say, management should review their policies to determine whether they include language that may be more narrowly tailored to avoid an interpretation in conflict with the Act. And, before disciplining employees under these types of policies, managers should consult with human resources and legal counsel to ensure the conduct is not protected under the Act.

2. Employer Violates the Act If It Does Not Promptly Bargain with a Union or Seek an Election After a Union Requests the Employer Bargain With It.

At the end of August, the Board decided Cemex Constr. Materials Pac., LLC, 372 NLRB No. 130 (Aug. 25, 2023). In Cemex, the Board announced two changes for how a union may organize employees and force an employer to bargain with it about the employees’ terms and conditions of employment:

• If a union requests an employer recognize and bargain with it, the employer must bargain with the union or petition the Board for an election to determine whether employees want to be represented by the union. If the employer does neither option, then it risks (i) the union filing an unfair labor practice charge for failing to bargain, and (ii) the Board ordering it to bargain with the union without an election to determine whether the majority of employees actually support the union.
• 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 organizing campaigns and require management’s immediate understanding of how the new rules will work in practice so they can promptly respond.

Changes to Union Organizing Process.

Before the recent change, if a union wanted to represent an employer’s workers, it had two options. The first option was essentially futile. 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.

Now, a union’s first option—demand an employer recognize it as the employees’ representatives and bargain with it—is no longer futile. Instead, in response to a union’s demand that the employer recognize and bargain with it, the employer has three options:

• The employer may recognize the union and bargain with it about employees’ terms and conditions of employment.
• 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 on 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.)
• The employer may choose not to recognize the union or petition the Board for an election within two weeks. If it does so, 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. An employer may implicitly agree to recognize the union 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 Snow & Sons, the Board ordered the employer to recognize and bargain with the union because:

When initially faced with a demand for recognition, the [employer] refused to recognize the Union on the ground that it doubted the Union's majority status. Later in the same day, however, the [employer] through one of its partners agreed to a check of the signature cards presented by the Union which check indicated that a majority of [the employer’s] employees had applied for union membership. The [employer] nevertheless continued in its refusal to recognize the Union and bargain with it and insisted on a Board election although it did not question the accuracy or the propriety of the card check, asserting . . . that it never considered the card check binding on it. - Snow & Sons, 134 NLRB at 710.

Most employers faced with a union’s 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 labor organization claiming a majority is required. Felton Oil Co., 78 NLRB 1033, 1035–1036 (1948); R Case Handling Manual 11022.3 (“The employer’s showing of interest in a RM case consists of proof of a demand for recognition made by one or more labor organizations . . ..”). 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. Requiring an employer to file an RM petition eliminates this requirement.

Filing an RM petition also potentially avoids a hearing on the appropriateness of the unit. The Board suggested an employer may litigate the appropriateness of a unit in an RM petition, but it is unclear how this would work. An employer in an RM petition situation must consent to an election if the union involved agrees with the allegations in the petition. So, an employer would need to file an RM petition with a description of 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. However, 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, 193 petitions for elections seeking to unionize employees have been filed with the Board. Unions filed 159 of the petitions. Employers filed 34 petitions. While this is a significant increase in the number of employer-filed petitions, it appears unions continue to see strategic advantages in filing traditional RC petitions to represent employees.

Changes to the Standard When the Board Will Order an Employer to Bargain with a Union Without an Election or Despite the Results of an Election.

Before the recent changes, where a union has achieved majority support and an employer engaged in unfair labor practices which “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 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 employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.” Under this standard, most violations during a union organizing campaign – except for the most egregious – resulted in an order for another election.

Now, if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the Board will force the employer to recognize and bargain with the union. The Board clarified that “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 suggested that, to justify a bargaining order, a violation must relate to the validity of the results. In response to the argument that a single unlawful policy in an employer’s handbook could result in a bargaining order, the Board explained it would not issue a bargaining order “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.” Still, the Board’s message is clear: an employer may not aggressively campaign against a union with the expectation, at worst, the Board may order another election. Instead, the Board is sending a clear message it expects this new standard will 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.

3. Limited Time to Persuade Employees Not to Unionize After a Campaign Begins.

On August 25, 2023, 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 election procedures established in 2014, which critics have labeled “quickie election” rules. The new rules are effective December 26, 2023.

Employers generally want more time between when a petition for an election is filed and when the election is held. Unions may spend months organizing employees and gaining support. When a union files a petition for an election (or requests 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—which changes several procedural deadlines—means less time between when a petition is filed and when the election will occur. 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. This makes it more important than ever for employers to be prepared for union organizing campaigns because they will not have the luxury of time to convince employees not to vote for the union.

What Management Should Do in Response to The Board’s Recent Changes

An employer has significantly more freedom to respond to and address the issues that motivate a union organizing campaign if it 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. With more freedom and time to educate employees about the facts about unions and collective bargaining, an employer is more likely to prevail in a union organizing campaign. Employers that want to remain union-free under the changes in the law should consider implementing the following recommendations in consultation with legal counsel:

• Survey employees’ satisfaction - Employee satisfaction surveys should be structured in a way that lets you determine patterns of satisfaction (or dissatisfaction) among different shifts, job positions, departments, and lines of supervision. This will let you identify where changes are necessary in management, compensation, or communication to improve satisfaction. (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. - The primary catalyst for union organizing is when management does not effectively address employees’ questions or complaints. If management does not address employees’ questions or complaints, employees will seek another person—such as a union—who can answer the questions and resolve the complaints for them. Managers who are poor communicators should be trained on how to effectively address employees’ questions or complaints. Management should leverage excellent communicators to deliver the employer’s messages about unions, union authorization cards, and other persuasive messages designed to keep the employer union-free.

In addition, train managers to –

• Identify and IMMEDIATELY report early signs of union organizing. Managers must promptly report the early signs of union organizing to designated representatives (e.g., legal counsel, human resources) who can implement a strategy to respond to any union organizing. These early signs include: employees who rarely interact or have no relationship with each other suddenly meeting often; employees soliciting union authorization cards or distributing information about unions; employees asking you questions about unions or union organizing; employees being more vocal in challenging or questioning new rules or initiatives; and employees meeting on working or nonworking time and quickly dissipating when they observe management. Managers cannot surveil or interrogate employees to discover the early signs of union organizing. Instead, they must be alert and vigilant. Too often, employers are surprised by union organizing because managers fail to identify the early signs, to take the signs seriously, or to report the organizing.
• Lawfully discuss unions and union organizing with employees. - Employers must train managers on the do’s 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 or 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. - A “union authorization card” is a signed statement from an employee stating that they want the union to be their exclusive bargaining agent. Signing a union authorization card is a legal document stating the employee wants the union to represent them. The Act gives an employee the right to sign or not sign a union authorization card. During nonworking time, employees have the legal right to express their opinions to fellow 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. - Under the law, a bargaining unit need not be the best unit, but it must be appropriate. A community-of-interest analysis lets you determine whether a group of workers share enough in common to constitute a proper bargaining unit. In consultation with results from an employee satisfaction survey and front-line supervisors, employers should strategically evaluate units that will give them the best opportunity to succeed in any union organizing campaign.

• Develop a plan for responding to a union’s demand for bargaining that includes the following:

1. Identify leaders responsible for reviewing and approving messages to employees about the union. The group should not be too large that approving messages is cumbersome. The group should include human resources, benefits, operations, and legal counsel. These leaders should meet to develop 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.

2. Develop a set of communications (or website) that has been reviewed by the leaders identified above and can be quickly distributed to management and employees providing facts on union authorization cards, the benefits available to employees, and the risks of collective bargaining and strikes.

3. 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.

The rules are increasingly favoring unions. In addition to the best practices described above, consult with legal counsel. Spilman has extensive experience advising employers and defending against union campaigns.