August Brings a Flurry of Activity from the National Labor Relations Board

Legal Alert

August 31, 2023

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As August ends, the National Labor Relations Board (“Board”) has issued two significant decisions as well as a direct final rule about representation cases.

On August 25, 2023, the Board, in Cemex Construction Materials Pacific, overhauled longstanding procedures relating to union organization and recognition. The Cemex decision eliminates the need for unions to file an election petition with the Board before a union may demand recognition. Instead, unions may now demand recognition from an employer on the basis of asserting majority support through recognition cards.

Under the Cemex rules, if a union makes a claim of majority support, the employer has two options: (1) immediately grant recognition without the requirement of a Board election, or (2) promptly file its own Board petition to initiate an election. The Board defines “promptly” as generally within two weeks of the union’s claim of majority support. Under Cemex, an employer’s failure to promptly petition the Board for an election constitutes an unfair labor practice and, as a remedy, the Board will order the employer to bargain with the union. Before Cemex, if the employer committed unfair labor practices in response to a union campaign, the Board required a new election; however, under Cemex, the Board will instead order the employer to bargain with the union. Likewise, if an employer neither recognizes the union nor files a petition for an election, it will be subject to a bargaining order. As such, Cemex substantially expands the circumstances that may prompt a bargaining order from the Board.

Also on August 25, 2023, the Board, in Intertape Polymer Corp. clarified the burden to prove anti-union retaliation, while maintaining the decades-old framework for the Board’s analysis. The NLRB General Counsel had asked the Board to overturn the Board’s 2019 decision in Tschiggfrie Properties Ltd. that was interpreted to require evidence of particularized animus toward a worker’s protected activity, even when the record contained evidence of generalized anti-union animus. The Board clarified that Tschiggfrie Properties Ltd. did not change the NLRB prosecutor’s burden of proof. The burden of proof remains the same as it has been through decades of NLRB decisions. Specifically, the framework requires the Board prosecutors to show that a worker’s union activity was a “motivating factor” behind an employer’s action, including by showing that the worker was engaged in union activity, the employer knew about that activity, and that the employer held anti-union sentiment. Either direct or circumstantial evidence can support a finding of anti-union animus. If the Board meets this burden, the employer then must show that it would have taken the action against the worker regardless of their union activity.

Finally, the Board also published a direct final rule containing ten amendments intended to effectuate fair, efficient, and expeditious resolution of representation cases. The Board passed the rule without the notice-and-comment period as the changes are procedural in nature.

The Board revived the 2014 pro-union election rules, which made elections easier for unions to win. A client alert regarding the 2014 rule is available here. As such, the rule replaces the current, employer-friendly 2019 election rules which afford employers greater pre-election due process rights in representation cases. A client alert discussing the 2019 changes is available here. For example, the deadline to schedule pre-election hearings is reduced from 14 business days to eight calendar days from the service of the Notice of Hearing. Additionally, the timing of elections eliminates the 20-day waiting period for elections and directs regional directors to schedule votes for “the earliest date practicable” after the issuance of a decision and direction of election.

If you have any questions regarding this decision, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.