by Natale V. DiNatale
A new NLRB standard has made it far easier for unions to represent employees without a secret ballot election. For construction employers, this new standard applies to traditional “9(a)” relationships, which require support from a majority of employees, not traditional prehire agreements under 8(f) of the NLRA. The standard (announced in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023)) emphasizes union authorization cards (“union cards” or “cards”) that are gathered by union officials and union activists who often employ high-pressure tactics to obtain a signature. Employees often sign union cards without the benefit of understanding the significance of the cards. Even if they don’t want a union, they may sign because they feel pressured by a coworker, don’t want to offend a colleague, or want to avoid being bothered.
The new standard still permits an election, but the NLRB will only conduct an election if the employer petitions for an election promptly, usually within two weeks of the union’s demand for recognition. Even if an employer petitions for an election, the NLRB will set aside that election if the employer commits virtually any misstep during the period leading up to the election. Thus, if the union loses the election and the employer commits an unfair labor practice, the NLRB will look to union cards and likely order that the employer recognize and bargain with the union. The impact of this new standard is that any union that gathers cards from a majority of employees in an appropriate bargaining unit has a relatively easy path to recognition without an election and despite an election loss.
More specifically, once a labor union gathers enough cards, it must simply request employer recognition. The employer must then file an election petition, “usually within two weeks.” If the employer does nothing, the union may either file an election petition or file an unfair labor practice (ULP) claiming a refusal to bargain. If, during that ULP proceeding, the union establishes that it has majority support (demonstrated with union cards) in an appropriate bargaining unit, the board will order the employer to recognize the union, without an election. In that situation, the obligation to bargain will be retroactive to the union’s demand for recognition.
If either party files for an election and “the employer commits an unfair labor practice that requires setting aside the election, the [election] petition will be dismissed, and the employer will be subject to a remedial bargaining order.” (Cemex Construction Materials Pacific, LLC, 372 NLRB at 26 (emphasis added)). The standard for ordering bargaining without an election is much broader that the narrow “Gissel” standard authorized by the U.S. Supreme Court in 1969 (Gissel Packing Co., 395 U.S. 575 (1969)). Thus, if the employer commits “unfair labor practices that frustrate a free, fair, and timely election, the board will dismiss the election petition and issue a bargaining order,” based on whether the cards establish majority support (Cemex Construction Materials Pacific, LLC, 372 NLRB at 28).
This new standard emphasizes union cards, but if an employee doesn’t understand the full legal weight of a card or what it means to have a union, employees who would otherwise reject a union may sign an authorization card to avoid offending their coworkers or because of group pressure. Also, while it’s improper for union organizers and adherents to coerce employees or misrepresent the nature and purpose of an authorization card, gathering that evidence and establishing it before a judge can be challenging.
Importantly, employers are permitted to speak with their employees about unions and union cards, but they must do so in a lawful manner. Further, employers that accept and examine union authorization cards or that otherwise gain independent knowledge of a union’s majority support are at risk of a bargaining order. At this critical time, it’s important for employers to gather internal stakeholders, to set priorities, identify risks and develop action items (including training) so that a plan is in place before the issue arises. Employers should also consider contacting competent legal counsel to identify, discuss, and mitigate any existing or potential risks.
To read the full article, visit https://www.constructionlawzone.com/2023/10/construction-employers-beware-new-easier-union-representation-process/.
Natale V. DiNatale
Natale V. DiNatale is chair of the Labor Relations Group at Robinson & Cole LLP.
