Employers, please take note. The National Labor Relations Board ("NLRB") just changed the rules for union elections, making it much more challenging for employers. The big takeaway away—that if a union presents the company with union cards or a petition, please call your lawyer immediately and do not do anything else.
Why? Under the new rules announced in this month's CEMEX decision, if the union requests recognition based on a majority of employees in an appropriate bargaining unit, the employer now (newly) has the burden to promptly file an election petition with the NLRB. If the employer does not act, the majority is likely established and the union is now likely to be recognized.
So, that explains why you need to call your lawyer immediately. You probably need help filing that RM Petition to avoid an automatic union. But why do we also say "Do not do anything else"? The second shoe to drop from this decision is that if the employer does file for an election but is found to have committed an Unfair Labor Practice (ULP) during the campaign, the union automatically wins. In other words, the employer can win the election but the NLRB can override the vote and install the union on the ground that the employer "tainted" the election.
According to the NLRB, there were almost 10,000 ULP charges filed during the first six months of the fiscal year 2023, up 16%. We have no crystal ball, but we're willing to bet that with the new power of a ULP during a union campaign, that number will go up again. Dramatically.
Again, if a union reaches out you probably want to call your lawyer immediately and do not do anything else. If you have any questions about this Alert, we encourage you to contact your Shulman Rogers attorney for solutions and recommendations.
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