Union Organizing May Have Just Gotten Easier

You may have heard about the National Labor Relations Board’s (NLRB’s) Cemex ruling in the news, and for good reason. This decision may make it easier for a union to gain entry into an employer’s workforce and demand a seat at the bargaining table.

By way of background, the standard union organization process typically involves initial interest among workers, often accompanied by discussions with union organizers. If more than 30 percent of the employees in the proposed bargaining unit are interested, the union can file a petition with the NLRB and proceed to a secret-ballot election. If voted in, the employer must bargain with the union. This process may not be necessary, however, if the employer verifies that the union has the support of more than 50 percent of the employees, as demonstrated by signed authorization cards.

Enter the NLRB’s decision in Cemex Construction Materials, 372 NLRB No. 130 (August 25, 2023). If a union has majority support through the authorization cards, the burden falls on the employer to initiate the petition. The employer must either recognize the union voluntarily or file an employer petition for the secret-ballot election.

It appears that the impact—and perhaps the intent—of the Cemex decision is to encourage employers to voluntarily recognize unions upon learning of the support through the signed authorization cards. Yet authorization cards may not be a reliable indicator of support by employees. The dissenting opinion in Cemex stated that “(o)ne reason union-authorization cards are inferior to a secret-ballot election is that signing an authorization card is an observable and, often, an observed act, and employees may sign a union card not because they want the union as their bargaining representative but because they feel pressured by their coworkers to sign.” Read the full decision and order here (the document will download).

There is one more wrinkle that impacts employers. If an employer—through its own actions or a supervisor’s actions—commits an unfair labor practice (ULP) (e.g., threatening to close the facility if the workers vote for the union), then that ULP may be sufficient grounds for the NLRB to overturn an election and issue an order requiring the employer to bargain with the union.

How easy is it for a company to commit a ULP? Easier than most managers can imagine. You’ve heard the phrase “loose lips sink ships,” and this is particularly impactful in the union organizing realm. Frontline supervisors and managers must be fully aware that even offhand comments threatening jobs or facilities or promising wage increases can be ULPs. And, with the Stericycle decision also in hand, merely having certain work rules in your handbook could be a ULP as well, such as a social media policy prohibiting employees from making negative comments about the company.

What should employers do at this time? Ensure your managers and supervisors have been trained on the early signs of union organization activity and, critically, what to avoid saying or doing during an organization campaign. In addition, review your handbook and work rules to ensure that none of your rules could possibly constitute a ULP.