NLRB’s Decision Impairing Employee Voting Rights Changes The Labor “Playing Field”

Decoding the NLRB's decision: Implications for union organizing

On August 25, 2023, in Cemex Construction Materials Pacific, LLC, the National Labor Relations Board (NLRB), or the board, dramatically changed the playing field for union organizing under the National Labor Relations Act (NLRA). The decision allows employers a mere 14-day window after a union “claiming” majority employee support demands recognition either (1) to recognize the union or (2) to file what is called an RM petition for an election to protect employee rights to vote.

This is the NLRB’s new rule, regardless of whether the union demand has verified support in the worker group. There is no board procedure for verification of the union’s claim of majority support other than filing the RM petition to put the issue to a vote. 

Moreover, another part of the Cemex decision allows the board to use unfair labor practice proceedings against an employer to justify a board bargaining order forcing the employer to recognize and bargain with the union if the employer is proven, during the course of the election campaign, to have committed any virtually any unfair labor practice. 

If that happens, employees have no chance whatsoever to vote through no fault of their own. This creates serious challenges for employers and employees in deciding whether or not to be represented by a union agreed upon in a fair and confidential voting process.  
 
The board’s decision is a significant departure from the board’s longstanding policy and practice. In the past, a “re-run” election was the consequence of any unfair labor practices and/or other objectionable conduct that made a fair election impossible. That policy and practice may not have been to the liking of organized labor and this board majority, but it generally served to preserve an employee’s right to vote, with bargaining orders issued only in extreme cases. 

Cemex is not final yet, with the employer litigating review of the decision in the U.S. Court of Appeals for the Ninth Circuit.

Key points About Cemex Employers Should Know  

1. The Cemex decision creates a 14-day deadline for employers to file an RM petition for a board-conducted election, running from the date that the union requests recognition. If the employer misses the deadline, it must recognize the union. Before Cemex, the employer could wait until the union filed an RC petition for an election.

2. The decision’s mandatory process and new standard have created an increased incentive for unions to pursue unfair labor practice (ULP) allegations for pre-election conduct by employers. That, in turn, allows unions to halt elections that they fear they might lose for any reason, including lack of majority support, or to avoid the results of elections that the union lost. 

In many cases, unions may believe -- probably correctly -- that they have better chances with the board majority – especially the current board – than with a majority of employees voting. And employers are being ordered to bargain after the union’s lost elections.

3. The current board majority, when opportunity presents, can be expected to find that an employer engaged in ULPs. 

4. The decision applies retroactively to all pending and future board cases unless a court intervenes or a new NLRB standard is announced.

The Apparent Results 

The NLRB has seen an increase in RM petitions year over year since it issued the Cemex decision. This is not surprising, as it is the only reasonable alternative to the employer agreeing to a union demand for recognition, no matter how baseless. One positive aspect for employers is that the employer in an RM petition can describe what it believes is the appropriate election unit at the outset of an ‘NLRB Region’s R Case’ proceeding. The union then can respond, accepting it or seeking changes in the unit description.    

Ramifications for Employers and Adjusting to the New Board Standard

The Cemex framework, when combined with the recently issued NLRB regulations that re-established the so-called “Quickie Election Rule,” largely forces employers to be alert and ready to respond lawfully to union organizing and promptly to union demands for recognition. 

All managers with human resources and employee/labor relations responsibilities should be aware of the Cemex “rules of the road.” Employers likely will want to undertake and continue effective supervisor training before a union is on the scene. Once the organizing activity starts, it may be too late. Union demand letters should be channeled promptly to responsible management without delay. Stricter employer oversight of supervisor and consultant communications is likely warranted and necessary. 

Certainly, with smartphones and smartwatches nearly ever-present, management and employee interactions are often being electronically recorded, sometimes, surreptitiously. Employers will want to carefully manage what they say, and may want to keep exact records of everything that was communicated and when on any union- or labor-related topic. 

Employers should also expect unions and supportive employees to do all they can to record statements -- selectively -- that they think the NLRB might view as unlawful. It may be prudent for an employer to have all campaign communications in writing, scripted, or otherwise memorialized exactly, with prior legal review, to avoid communications that the board would find to be unlawful and warranting a bargaining order.   

Employers can expect to see more situations when a union, seeing that an employer is prevailing in a campaign, will use the ULP process to take the employees’ vote away. Thus, employers would be wise to review employee handbooks and policy manuals, with revisions as needed, so that the statements and policies are lawful and pass muster under the NLRB’s recently announced Stericycle standard. Nearly any violation of an employee’s Section 7 rights, as interpreted by the current board majority, is likely to allow the board to justify a bargaining order without an election – if Cemex “remains the law.”

Given the high stakes and this board majority’s view that unions should gain representation without having to win elections, employers facing union demands for recognition and/or union campaigns should be prepared and act lawfully with speed and management discipline to have complete control of campaign communications. 

Employers should be aware of the critical need to have evidence of compliance with the NLRA with respect to all campaign-related communications with employees and to do nothing that a union, the board’s general counsel, or the board majority can point to as an unfair labor practice. Again, this may, depending on the employer’s risk profile, compel that all communications from management to employees about the subject of unions be scripted with prior legal review and that all employer policies and handbooks be reviewed.   

Expect the NLRB to continue to “push out” positions (through decisions and rulemaking) that are unfavorable to employers and often to employees’ interests to assist unions. That, in combination with the Cemex framework, will result in even more union demands for recognition, more ULP allegations, more limits on employers’ communications, less informed employee-voter choice, and many more board representation and ULP proceedings. 

It will be harder not only for employers to win elections but also for employees to even have elections in the first place. Perhaps the Ninth Circuit, on review of the Cemex decision or another court, may take action to keep Cemex from taking effect. But until such action can be relied upon, employers will want to keep Cemex and its implications “front of mind.”   

	David Phippen serves as Senior Counsel with Constangy, Brooks, Smith & Prophete, LLP. He has for many years represented businesses in a full range of labor, employment and transportation matters.
	Timothy Davis is a Partner at Constangy, Brooks, Smith & Prophete, LLP. He advises clients on various aspects of the employer/employee relationship, including compliance with employment statutes like NLRA, FMLA, Title VII, ADA, FLSA, EPA, OSHA, Executive Order 11246, ERISA, and state and local employment laws.