Union-Friendly Election Procedures Take Center Stage in the National Labor Relation Board’s latest Cemex Decision and the New Election Rules

In a major victory for unions, the National Labor Relations Board (the “NLRB” or “Board”) issued the highly awaited decision in Cemex Construction Materials Pacific ("Cemex”), reversing decades of precedent. Specifically, in Cemex, the Board unveiled a new framework that puts the burden on the employer to seek a representation election, rather than the union. What’s more, the Board held that an election can be bypassed altogether – and the union put in place – where the company commits an Unfair Labor Practice (“ULP”) during the period between the demand for recognition and the casting of votes. This alert discusses the seminal Cemex decision, the recent NLRB General Counsel guidance memo on the decision, and the Board’s related new election rules.

The Cemex Decision

Cemex stemmed from an organizing drive among ready-mix truck drivers employed in Southern California and Nevada.  At issue were allegations that the employer engaged in unlawful misconduct during the “critical period” of an election campaign – specifically before, during, and after the period when the union had secured signed authorization cards from a majority of the bargaining unit – that included threatening employees with plant closure, job loss, and other reprisals if they voted for the union; surveilling employees and interrogating them about union activity; disciplining employees for talking with union organizers on “company time;” and suspending and discharging employees for union activity.  

The Administrative Law Judge determined that the employer’s actions warranted a re-run of the election.  On appeal to the NLRB, the General Counsel argued that, rather than a re-run election, a bargaining order to impose union recognition and to direct the employer to begin collective bargaining was the appropriate remedy. Consequently, the Cemex decision established that nearly any unlawful conduct preceding an election will prompt the Board to issue a mandatory “bargaining order” requiring union recognition despite an employer’s petition for election.

The NLRB did not stop there, however. In deciding Cemex, it also held that if a union presents an employer with a majority of signed authorization cards, the employer must either recognize the union promptly or file a Request for Mediation (RM) petition for an election within two weeks of the demand for recognition. If the employer does neither, the Board will issue a remedial bargaining order – a mandate that the employer recognize and bargain with the union as if the union had prevailed at the ballot box. 

General Counsel’s Guidance Memo

Toward the end of 2023, the General Counsel released a guidance memo about the Cemex decision. The General Counsel’s position is that a single violation by the employer during the election’s “critical period” may result in dismissal of the RM petition and the issuance of a bargaining order. This marks a departure from the previous practice of re-run elections, with the Board determining that a bargaining order is more appropriate if traditional remedies are deemed insufficient to erase the effects of past practices.

The memo also cited various types of ULPs that would trigger a bargaining order. Any 8(a)(3) ULPs by the employer (i.e., firing or discrimination in terms of employment meant to discourage union membership) or 8(a)(1) ULPs (i.e., threatening employees with adverse actions if they support a union or engage in protected activity; spying on employees’ union activities; disciplining or discharging an employee because of their protected concerted activities; creating the impression of surveillance on employee’s union activities; etc.), as well as certain handbook or other workplace policies that have a chilling effect on employees’ Section 7 rights under Stericycle, can trigger a bargaining order.  For other types of charges, the Board outlined a host of factors in deciding whether to set aside the election and issue a bargaining order, including the severity and timing of ULPs, the size of the unit, and the extent of employee misconduct. The General Counsel’s position is that the Cemex decision may be applied retroactively to pending cases at any stage of the investigation process, unless doing so would result in manifest injustice.

New Election Rule

Alongside the Board’s decision in Cemex, the Board adopted the 2023 Election Rules that will reduce the time from petition filing to election and expedite the resolution of any post-election litigation. The recently implemented 2023 Election Rules are now in effect, and include the following:

• Pre-election hearings will be scheduled to start 8 calendar days after petition filing, approximately 10 days earlier than under existing election procedures;
• Regional directors will have more limited and defined discretion to postpone pre-election hearings: 2 business days if a party demonstrates “special circumstances” and more than 2 business days if a party demonstrates “extraordinary circumstances”;
• A non-petitioning party’s written response to a representation petition will be due 7 calendar days after petition filing, which is 3 calendar days earlier than under existing election procedures;
• Petitioners will be allowed to respond orally to the non-petitioning party’s Statement of Position at the start of the pre-election hearing instead of having to file and serve a written response to the Statement of Position 3 days in advance of the pre-election hearing;
• An employer will post a Notice of Petition for Election 2 days after receiving a Notice of Hearing, approximately 3 days sooner than under existing election procedures;
• Regional directors will specify the election details in the Decision and Direction of Election (“DDE”) and simultaneously transmit the Notice of Election with the DDE;
• Regional directors will schedule elections for “the earliest date practicable” after issuance of a DDE, which eliminates the 20-business day waiting period to schedule an election;
• Written briefs after a hearing will only be allowed with the regional director’s or hearing officer’s special permission;
• Regional directors will ordinarily defer litigation of eligibility and inclusion issues to the post-election stage, if those issues do not have to be resolved to determine if an election should be held.

These collective changes underscore a more favorable landscape for unions in organizing and representation efforts. Employers must not only minimize the risk of ULP charges that may result in bargaining orders, but also ensure compliance with the new election rules to meet a significantly reduced timeframe in the lead-up to elections. If you have questions or need help reviewing your policies, contact a Honigman Labor and Employment Attorney here.