New NLRB Rules on Voting

New NRLB Rules on Voting

NEW NLRB RULES FAVOR MANDATORY UNION RECOGNITION & LIMIT EMPLOYEE VOTING IN SECRET-BALLOT ELECTIONS

August 27, 2023

The National Labor Relations Board drastically changed the process for unions seeking recognition of most private sector employees in the United States. Abandoning 50 years of established law, in Cemex Construction Materials Pacific (372 NLRB No. 130), the NLRB created new rules that will impose two types of mandatory union recognition bypassing or overriding the results of secret-ballot employee voting in NLRB-conducted elections.

These changes radically shift the legal landscape for companies addressing demands for recognition and organizing campaigns and require significant, proactive approaches now to address the new reality for how unions will organize and win certifications going forward.

KEY TAKEAWAYS

Cemex eliminates any requirement for unions to file a National Labor Relations Board (NLRB or the Board) election petition before an employer may be required to grant union recognition. Instead, a union can demand recognition based on a claim of majority support.
Under the Cemex rules, if a union makes a claim of majority support, the employer must (1) immediately grant recognition without any NLRB election, or (2) file its own NLRB petition seeking an election. If the employer fails to take either step, the NLRB will order mandatory union recognition (with no NLRB election) unless the employer—in a later unfair labor practice (ULP) proceeding—proves that the union did not have majority support or that the claimed bargaining unit was inappropriate.
Although the Cemex rules permit the employer to petition the NLRB for an election in response to a union recognition demand, virtually any unlawful conduct during the period preceding an election will prompt the Board to issue a mandatory “bargaining order” requiring union recognition.
Cemex creates a new hair-trigger threshold that will prompt the Board to issue a mandatory “bargaining order” based on any unlawful conduct that sets aside an election, which dramatically changes the much higher threshold embraced in two US Supreme Court cases that validated the NLRB’s issuance of “bargaining orders” only when unlawful conduct made it “improbable” that a “fair election” can be held.

These new Cemex rules, when considered together with the Board’s recent return to the so-called “quickie election” standards that greatly accelerate the timeline for elections, make it much easier for unions to organize. In practice, if this new standard is not reversed by the federal courts, we expect most unions will organize by demanding immediate employer recognition or by virtue of NLRB determinations that the employer committed at least one ULP before an election was held, thereby nullifying the election results and declaring the union certified based on a pre-election claim of majority support.