The National Labor Relations Act (the “Act”) is often overlooked by non-union employers. The likely reason for this is the Act has traditionally impacted mostly unionized workforces. However, the Act applies to almost all private employers. Section 7 of the Act protects the rights of employees to “form, join, or assist labor organizations [aka unions], to bargain collectively through representatives of their choosing . . . and torefrain from any or all such activities.” Section 8 of the Act makes it an “unfair labor practice” for an employer to “to interfere with, restrain, or coerce employees in the exercise of [their Section 7] rights.”
The Act is enforced by the National Labor Relations Board (the “Board”) which is made up of five individuals appointed by the President for five-year terms. As a result, the Board is partisan and the policy initiatives of the Board vary depending on who occupies the White House. In addition to Board members themselves, the Board’s General Counsel (currently, Jennifer Abruzzo) has a significant influence on national labor policy by seeking changes in current law through litigation positions in cases before the Board.
The Decades Old Path to Unionization
One of the primary initiatives of the Biden Administration is to make it easier for unions to unionize workplaces. For more than 50 years, the process of unionization has remained relatively unchanged. Unions would target an employer and meet with employees in parking lots or during breaks and ask them to sign cards authorizing the union to act as their representative (“authorization cards”). Once unions collected authorization cards from at least 30% of employees, the union could petition the Board for an election. Before the election, employers would have a period of several weeks to conduct a “campaign” and inform employees of its position on unionization. Local representatives of the Board would then hold a secret ballot election where employees could express their preference whether to be represented by a union. In these campaigns, employers could meet with their employees and talk about things like:
- The risk of inserting a third party (the union) between management and employees;
- The uncertainty of the bargaining process (wages and benefits could get better or worse);
- The cost of union dues and facts about how unions spend their money;
- The difficulty of getting rid of a union after unionization;
- The ability of employees to vote “no” even if they signed an authorization card; and
- The importance of all employees voting because the election would be decided by a simple majority of the employees who actually vote.
Employers were traditionally allowed to require their employees to attend meetings where the employer could express its views on unionization.
Employers were subject to some limitations. Specifically, employers have always been prohibited from threatening their employees with an adverse action (e.g. demotion, decreased compensation or termination) for supporting the union, promising benefits for opposing the union, interrogating employees about their union sympathies, or spying on employees to determine their union sympathies.
After the election, the Board would certify the union as the bargaining representative of the employees if more than 50% of voting employees voted in favor of the union. However, if it was determined that the employer violated the rules described above during the campaign, the Board would typically require the employer to post an admission of its wrongdoing and commit to follow the rules and Board agents would then hold a “rerun” election.
The New Path To Unionization
Last fall, the Board changed these longstanding rules in a case against an employer named Cemex Construction Materials Pacific (“Cemex”). In the Cemex case, the employer narrowly won a union election, but after the election, an Administrative Law Judge for the Board determined that Cemex committed numerous election rule violations during the campaign by threatening pro-union employees, spying on employees, restricting the ability of employees to meet with union representatives, and hiring security guards to “intimidate” employees. As a remedy, the Judge ordered Cemex to post its admission of these violations and participate in a rerun election. On appeal, however, the Board ruled that merely setting aside the result and conducting a rerun election was not a sufficient remedy. Instead, the Board ruled that Cemex should be forced to recognize and bargain with the union – even though the union lost the election. In fact, the Board ruled that, in most cases, even where the employer wins by a wide margin, if the employer violated the campaign rules, the standard remedy would be a “bargaining order,” not a rerun election.
The Board also set forth a new pathway for unionization that may not require a secret ballot election at all. Under Cemex, if a union can show majority support from employees, and then asks the employer for recognition, the employer must either voluntarily recognize and bargain with the union OR file its own petition for election with the Board within 14 days. In short, Cemex shifts the burden from the union to the employer to petition for an election as long as the union can collect authorization cards from more than 50% of employees (a task that has historically proven to be very easy, even in cases when the employer ultimately wins a secret ballot election by a significant margin). Moreover, even if the employer understands and exercises its obligation to petition for an election, if the employer is subsequently found to have committed virtually any violations during the election (which will most certainly be alleged by the union if it loses the election), the Employer will be ordered to recognize and bargain with the union. The Board is currently using the Cemex decision to force employers to recognize and bargain with unions even when no secret ballot election occurs AND even when unions lose secret ballot elections by substantial margins but allege violations that would have been considered minor by prior administrations.
Employer Takeaways
The Cemex case requires all private employers to be proactive. Even employers who have traditionally not been targets of union activity need to consider the impact of the Cemex decision. Unions are actively seeking to unionize industries that were not traditionally targets. Chain retailers (Starbucks) and employers with younger work forces (Amazon) seem to be a new emphasis of union activity. Moreover, the Board appears to be on a path to expand the duty to recognize and bargain with unions to nationwide employers based on alleged election campaign violations in only a few locations. So, for example, violations committed during the failed union campaigns at a dozen Starbucks locations could result in an order to recognize and bargain with the union at each of the approximately 17,000 Starbuck locations in the United States.
In response to these developments, all employers should do the following:
- Educate managers about unions, union campaigns and card signing techniques;
- Make sure managers understand who to notify if they notice or hear about any union activity;
- Contact legal counsel if anyone purporting to be from the union tells any of your supervisors or managers that they want “recognition” – because a Petition for Election must be prepared and filed with the Board within 14 days of the recognition demand;
- Evaluate your managers and supervisors – employees who trust and feel respected by managers and supervisors are least likely to support unions;
- Ensure managers know their employees.
- Ensure managers are scheduling time to meet with employees both formally and informally.
- Train managers to look for opportunities to solve employee problems.
- Retain qualified labor counsel to train managers about union avoidance and unfair labor practices.
As labor attorneys, we have worked successfully with many unionized employers. However, unionization typically results in a permanent change to your workplace that increases costs and complicates day-to-day operations. The threat of unionization should not be taken lightly – even (and perhaps especially) if you have never been a target of unionization efforts in the past. For more information, please contact one of our labor law specialists.
D. Zachary Wiseman
Mr. Wiseman is an experienced labor and employment attorney whose practice is primarily focused on assisting both private and public employers with a wide range of labor and employment issues. Mr. Wiseman’s labor experience includes the representation of management in collective bargaining, labor arbitrations, unfair labor practice charges, and representation elections. Mr. Wiseman works closely with his clients to create and update policy and procedure manuals and ensure compliance with, among other things, National Labor Relations Act, Family and Medical Leave Act, Fair Labor Standards Act, Office of Federal Contract Compliance Programs, and various state and federal anti-discrimination laws.
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