By Mark J. Ricciardi
Over the past year, the National Labor Relations Board (Board) has made it much easier for a union to organize at a new workplace. Through a series of coordinated actions, the Board has drastically changed how employers should respond to union recognition demands while creating an entirely new framework requiring employers to bargain regardless of the results of a representation election. Lawyers who practice employment law but may not be conversant in labor law should be aware of these new developments and should be ready to appropriately counsel their business clients or reach out to an experienced labor counsel.
- The Board’s August 2023 decision in Cemex 372 NLRB No. 130 (2023) started the ball rolling. It essentially puts the onus on an employer confronting a union recognition demand to timely petition for a representation election, and forces them to the bargaining table in response to unfair labor practices that would otherwise have warranted setting aside that election. That decision swept away over 50 years of precedent that entitled employers to decline union recognition demands based on claims of majority status (typically in the form of signed authorization cards), pending the outcome of a secret-ballot election monitored by the NLRB.
- Within a week, the Board issued two more decisions—Wendt 372 NLRB No. 135 (2023) and Tecnocap 372 NLRB No. 136 (2023)—that limit the power of employers to implement changes during first contract negotiations and upon expiration of collective bargaining agreements, respectively. These decisions severely limit the changes that employers can unilaterally make once a union is in the picture. No longer can businesses rely on past practices developed prior to the onset of union representation or pursuant to management rights clauses that have expired thereafter.
- In the waning days of 2023, the Board’s so-called “quickie election” rule (29 CFR Part 102) took effect, greatly accelerating the time period between union petitions and elections and making life that much harder for employers responding to a union organizing campaign.
- And this past summer, the Board overturned three Trump-era rules that had made it easier for workers to undo union representation via the decertification process.
The early returns show that these initiatives have achieved the intended effect, as illustrated by the 35% increase in union election petitions in the first half of 2024 relative to the same period in 2023. More evidence comes from the thirteen-fold increase in “RM” petitions filed by employers this year relative to the preceding decade, thanks to the new Cemex standard that requires employers to affirmatively request secret-ballot elections for purposes of contesting recognition demands.
So what steps can businesses legally take before a union is in the picture? Here’s how they can reduce their risk of liability for potential Unfair Labor Practice (ULP) claims while safeguarding the opportunity for employees to make informed decisions on the issue of union representation.
- Train supervisors and managers. While the NLRB is increasingly regulating their ability to lawfully respond to union activity, employers technically retain statutory “free speech rights” on the subject of union representation. Employees may not always receive a complete picture of what it means to select a union as their exclusive representative from the organizer alone. Against the backdrop of the new Cemex remedial framework, it is more important now than ever for statutory supervisors to understand what can be said lawfully, the role they play in maintaining a positive employee relations infrastructure, and the importance of avoiding ULPs. Supervisors are often the first line of exposure in such cases, but one that is properly trained can instead serve as the first line of defense, while serving as an indispensable part of any employer’s effort to lawfully keep employees fully informed.
- Create positive relationships with employees. Human Resources and frontline managers should commit to developing a positive workplace culture by regularly interacting with, seeking input from, listening to, and resolving employee concerns well before the onset of any organizing effort. By the same token, employers should consider implementing a regular process for auditing and confirming that wages remain competitive, while maintaining a robust communication process for reinforcing the “hidden value” of their benefits package.
- Recognize that a “one size fits all” approach may not be best. Rather, employers are encouraged to collaborate with their internal stakeholders and labor counsel to tailor an appropriate compliance strategy around the unique aspects of their workplace cultures.
About the author
Mark Ricciardi is the regional managing partner of Fisher Phillips in Las Vegas. He has been practicing labor and employment law in Las Vegas since 1987. Mark’s practice consists primarily of advising and representing large employers in collective bargaining and in the planning and execution of complex labor strategy.
About the article
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This article was originally published in the Communiqué (Sep. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-sep-2024/.
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