Immediate Action for Employers After NLRB’s Cemex Decision on Union Organizing

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The NLRB’s August 25, 2023 Cemex decision drastically changed the rules concerning union organizing, as we discussed in detail in our August 28, 2023 E-lert.  Under the new rules, if an employer does not file an “RM” petition with the NLRB within two weeks of receiving a demand for recognition from a union, the NLRB can order the employer to recognize and bargain with the union as representative of its employees.  If you do not know what demand for recognition is, or how to file an “RM” petition with the NLRB, you’re not alone.  The new rules are a huge pitfall for the unwary.  It remains to be seen whether the new rules will survive judicial review.  In the meanwhile, non-union employers who want to remain that way should take the following immediate actions.

Train managers and supervisors on what to do if they receive a demand for recognition.  There is no prescribed format for a demand for recognition.  It can be any communication that the union represents a majority of employees and seeks to engage in collective bargaining.  If a union organizer makes a demand for recognition, take the document but do not engage in discussion or agree to anything.  The demand should be reported to senior management immediately.  Just sending an email or leaving a voicemail is not sufficient.  Do not rest until the report is received and acknowledged by a senior official. If a union organizer offers to show you authorization cards, do not look at them. This training will need to be given when new supervisors and managers are appointed.

Establish a channel for reporting union activity to senior management. The Company should appoint a senior official in HR or the law department to whom any such demands should be reported.  Such reports should not be short-stopped by staff.  They should go to senior management immediately.

Train managers and supervisors on the PITS. Many things that a supervisor or manager would naturally do in response to union organizing are unfair labor practices that could result in unionization, without an election or even if employees rejected the union in an election.  The prohibited actions include:

  • Promises. You cannot promise changes to persuade employees not to support a union.
  • Interrogation. The NLRB prohibits questions such as who supports the union or why employees support the union.
  • T You cannot threaten employees about the consequences of supporting the union.  Threats include making dire predictions such as if the union gets it, management will probably close this place.
  • Surveillance. You cannot spy on union activity.  You cannot even suggest that you know about it.  “Impression of surveillance” is also an unfair labor practice.

The PITS are the most important rules, but there are others that managers and supervisors must follow.  The rules should be covered at greater length in a training session.

No retaliation. One way to get into deep trouble fast is to fire or lay off employees in retaliation for union activity.  It often happens that the union supporters are problem employees, but disciplinary action against them for performance reasons requires careful consideration and legal review in advance.  Other actions, such as layoff and reorganizations, are at risk after a demand for recognition.

Clean up handbooks and policies. The NLRB has become unreasonably strict about policies that an employee might read as restricting union activity.  The NLRB’s reading of policies has become so unnatural that only a labor law specialist would be able to discern the issue.  For instance, the NLRB has attacked policies that employees should not discuss complaints of harassment with other employees pending investigation and policies restricting use of cell phones in the workplace.

Connect with a labor lawyer in advance. If you are a client of Shawe Rosenthal LLP, you are already in good hands.  If not, you should connect with us or another experienced labor law firm that you can call immediately upon receiving a demand for recognition for further advice.  Many “employment” lawyers are not versed in practice before the NLRB.  You need a law firm with experience handling representation and unfair labor practice cases before the NLRB.

Follow Up. The above is not a complete list of best practices to avoid unionization, it is just a list of immediate action items so that the employer is not ordered to bargain with a union without a chance to oppose the union in a secret ballot election.  In the long run, the best way to avoid unionization is to provide fair and competitive wages, benefits and working conditions.