October 30, 2023 Expedited Election Rules Redux – With a CEMEX Twist

To retain direct ties with workers, employers must swiftly respond to unions, prioritizing card signing like never before.

By Thomas W. Scroggins and Allison Hawkins

A union delivers a letter demanding a company recognize it as the exclusive bargaining agent for its employees and encloses a petition with what appears to be 70 percent of the employees’ signatures designating the union as their bargaining agent. This will be the way most unions will commence the recognition process for the foreseeable future, and employers may be ill-prepared for this new world.

Gone are the days of a union spending months personally meeting employees and collecting signatures on paper union authorization cards, culminating in the union filing a petition for election with the National Labor Relations Board (NLRB). In this now bygone era, the company was served with an RC petition filed by the union, and the NLRB might schedule an election four to six weeks later after all the details about who, what, when, and where with respect to the vote are resolved. The employer had the option of conducting an informational campaign during that period that was sometimes lengthened to allow the resolution of numerous pre-election disputes, and most unfair labor practices committed during this period generally resulted in a rerun of the election.

However, starting Dec. 26, employers will often be the parties filing election petitions and the time from petition filing to election will be much shorter and the cost of unfair labor practices will be much higher – a combined result of NLRB’s recent Cemex decision and the new election rules announced on Aug. 24.

The Cemex Decision

On Aug. 25, the NLRB issued its decision in Cemex Construction Materials Pacific, LLC that incorporates elements of an old 1949 NLRB decision named Joy Silk Mills. Under Joy Silk Mills, unions were entitled to recognition upon a demonstration to the employer of a majority of employees signing authorization cards – meaning no election at all. While NLRB did not wholesale adopt Joy Silk Mills, it did turn the election process upside down and placed employers in a high stakes gamble over the decision to demand a vote and conduct an election campaign.

While Joy Silk Mills required employers to establish good faith doubt as to whether a union had majority support to refuse to recognize the union, Cemex still gives employers the option to choose an NLRB-conducted secret ballot election that the union must win before the employer is required to recognize that union. However, NLRB makes this choice fraught with peril because it further held virtually any unfair labor practice committed by the employer during the election period will result in the election petition being dismissed and the employer being ordered to recognize and bargain with the union immediately.

Under Cemex, if a union makes a demand for recognition supported by a majority of employees who signed cards, the employer has only 14 days to either recognize the union or file an employer petition for election with the NLRB (called an RM petition). This often means the employer has to choose whether it wants an election and requires the employer to conduct an informational campaign very shortly after it becomes aware there was any union activity at all. If there is an election, it will be conducted under the newly announced expedited election rules.

New Election Rules Move Fast and Furious

The new representation case’s procedures rules largely reinstates the 2014 “quickie” or “ambush” election rules and sets an aggressive timeline for the election, restrains consideration of procedural matters prior to the election and forces the employer to rapidly consider important pre-election issues such as the specific details of the election, unit composition and voter eligibility.

Under the new rules, election hearings will be held eight days after notice of the hearing. This cuts ten days off the current process that was based on the 2019 rule, and the ability for postponement is now extremely limited. Employers will have to file their statement of position by noon the day before the hearing. Unlike under the current rule, unions do not have to file a responsive statement and can wait until the hearing opens to respond verbally.

Additionally, individual voter eligibility issues will not be resolved prior to the election. Those individuals will presumably vote subject to challenges that will not be resolved until after the election, and then only if their votes would impact the outcome.

Post-hearing briefs following a pre-election hearing are now eliminated absent special permission, whereas under the 2019 rules parties had five days to submit a brief. In all, these rules make it likely that an election will occur within 14 to 21 days after filing of an election petition. Combined with the Cemex decision, the new election timeline looks as follows.

New Rules, New Strategies

The combined impact of recent NLRB decisions is that card-signing activity will require a greater employer response, both proactive and reactive, than it has in decades. A union’s demand for recognition supported by a majority of employees’ card signatures now creates a presumption of the union’s bargaining representative status that forces employers to make a Hobson’s choice: either recognize the union or try to conduct an immaculate election with no unfair labor practices lest the NLRB force the employer to recognize the union anyway. In light of these options, the employer’s solution is to prevent a union from achieving majority card status in the first place.

This is a bit of a departure from past strategy where employers would often not respond to even open and obvious card signing activity for various reasons. These reasons included reluctance to engage on a sensitive topic, not wanting to distract the workforce from efficient production and thinking that if the union did get enough support there would always be the opportunity for a secret ballot election to right the ship.

Now, employers who wish to preserve and protect their direct relationship with employees need to revisit their strategy. Vulnerable employers, either because of their particular industry or status as past organizing targets, need to behave as if a card signing campaign is ongoing at all times – because it probably is in today’s environment.

Employers must train supervisors on an ongoing basis, including proactive training on how to engage with employees on the topic of union organizing and the company’s position. Employees also need to be educated on what a union authorization card (whether paper or electronic) looks like and what it means so they will not sign a card out of ignorance or deceit.

Hoping employees know how to recognize a union authorization card and being assured course corrections can always be made during a months-long secret ballot election process is no longer a winning strategy. Proactive measures of the kind most employers have eschewed for decades must be pursued and rapid response plans put in place now to respond to the NLRB’s efforts to make it much easier and efficient for employees to form or join labor organizations.

Thomas Scroggins is a partner at Burr & Forman, LLP, where he defends businesses involved in employee lawsuits, advises employers during union avoidance campaigns, negotiates collective bargaining agreements, and designs policies for local, regional, national, and international employers of all sizes.

Allison Hawkins is an attorney with Burr & Forman, LLP, where she works with a wide variety of employers on a number of employment-related issues. She counsels clients in matters involving claims of discrimination and harassment, class and collective actions alleging employment law violations, and in the preparation of employee policies and handbooks.

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