NLRB Changes Rule for Recognizing Unions

​A new decision from the National Labor Relations Board (NLRB) will change the way employers must respond to union card checks.

On Aug. 25, the board ruled that when a union requests recognition on the basis that a majority of employees in a bargaining unit supported the union, an employer must either recognize and bargain with the union, or promptly file a petition seeking an election.

"For decades, if a union demanded recognition based on signed union cards, the employer could simply decline recognition, and the union would be required to file a petition with the NLRB, requesting an election. Only if the union won the election and was certified as bargaining representative would the employer be obligated to bargain with the union," explained Mark Keenan, an attorney with Barnes & Thornburg in Atlanta. Under the new decision, "the onus will be on the employer to essentially challenge the union's majority status through the representation process."

"Many employers will not realize that they must initiate this process on short notice and will become unionized without ever having an NLRB election," said Ryan Funk, an attorney with Faegre Drinker in Indianapolis.

If an employer seeking an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and rather than re-running the election, the board will order the employer to recognize and bargain with the union, the NLRB said in a press release.

The NLRB's decision centered on a union campaign at Cemex, a global construction materials company with U.S. operations based in Houston. 

"I don't think the decision alone will make it easier to form a union, but it certainly is altering 50-plus years of how representation cases have been handled by the NLRB," Keenan said.

While the changes "won't necessarily make it easier to organize, it almost certainly will result in a drastic increase in bargaining orders or unions imposed on a workgroup without a chance to vote," said Phillip Wilson, president and general counsel for the Labor Relations Institute, a labor relations consulting firm in Broken Arrow, Okla. Cemex hired the Labor Relations Institute to help execute an anti-union campaign.

The NLRB's changes are intended to promote a fair election environment, better realize employees' rights to bargain collectively, and discourage employers from committing unfair labor practices, the board said.

"The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment, said NLRB Chair Lauren McFerran. "Under Cemex, an employer is free to use the board's election procedure, but is never free to abuse it."

Unfair Labor Practices

On March 7, 2019, a Cemex unit of about 366 cement truck drivers and driver trainers in Southern California and Las Vegas voted against representation by the International Brotherhood of Teamsters. The election margin was so small that a change of only seven votes in the union's favor would have reversed the outcome, the NLRB said.

NLRB General Counsel Jennifer Abruzzo and the union alleged that the company engaged in extensive unlawful and coercive conduct before, during and after the election. The board agreed the unfair labor practices included:

• Threatening employees with plant closures, job loss and other reprisals if they voted for the union.
• Surveilling employees and interrogating workers about their union activity.
• Prohibiting employees from talking with union organizers or displaying pro-union paraphernalia.
• Hiring security guards in order to intimidate employees immediately before the election.
• Firing a pro-union employee because of her union activity.
• Disciplining a pro-union employee for talking with union organizers on company time.
  

For example, the board found a plant foreman in Las Vegas threatened drivers with discharge or reduced hours or benefits if they unionized, and instructed drivers to take union stickers off their hardhats in August 2018. A plant foreman and superintendent engaged in surveillance and created an impression of surveillance by lingering for an unusually long time at the entrance to the Inglewood, Calif., plant and waving to drivers entering and exiting the plant while union organizers standing near the same plant gate were displaying a poster and answering drivers' questions about comparative wages and benefits on Jan. 28, 2019.

The same day, at a group meeting, a general manager said wage increases could be delayed for years and work opportunities would be limited by strict contract classifications if employees unionized. He also said reinstatement of striking employees would be dependent on their seniority level, the NLRB found.

"Economic strikers are generally entitled to reinstatement without delay upon their unconditional offer to return to work, except [when] the return to work of economic strikers may be delayed based on an employer's legitimate and substantial business justification," the NLRB stated. "We find that drivers would have understood [the general manager's] comments as a threat of permanent job loss if employees selected the union."

Because of these violations, the board invalidated the election and ruled that Cemex must recognize and bargain with the union. The board said it took into account the pervasiveness of the violations, the number of employees directly affected, the identity and position of the individuals committing unfair labor practices, and how widely knowledge spread among employees about the unfair labor practices.

"The purposefulness of [Cemex's] unlawful conduct here strongly suggests that it would likely meet a re-run election with a similarly aggressive union-avoidance strategy, similarly prone to stray into unlawful coercion," the NLRB stated.

In a dissent, Board Member Marvin Kaplan said the record fails to establish that Cemex threatened employees with work transfers or plant closings. He also called the majority's changes in policy "deeply flawed" and "unsound as a matter of policy and unenforceable as a matter of law" because it conflicts with Supreme Court and circuit court precedent.

Maryssa Silva, a spokesperson for Cemex, said, "We remain committed to providing the best working environment and to complying with all labor laws and fair practices. The National Labor Relations Board's decision, though disappointing, does not affect that commitment."