Landmark Decision and Rule Changes Promise to Re-Shape Organizing for Private Sector Workers

Breaking news: two major developments last week will reshape the legal processes for organizing a union in the private sector.

On August 25, 2023, the National Labor Relations Board issued a landmark decision that promises to speed organizing and deter employers from committing unfair labor practices once a union demands recognition.

Under the new standard announced in Cemex Construction Materials Pacific, 372 NLRB No. 130 (2023), if a union demands recognition after having secured majority support in the form of authorization cards in a unit appropriate for collective bargaining, the employer must do one of the following within 14 days: (1) the employer may recognize and bargain with the union, or (2) the employer may file for an “RM” election. The union may also file an RC petition for an election. If the employer commits an unfair labor practice that requires setting aside that RM or RC election, the employer will be ordered to bargain with the union.

Previously, the NLRB would usually order a re-run election in this situation, which essentially allowed the employer to benefit from its own misconduct. The NLRB would only issue bargaining orders in rare cases where it considered the unfair labor practices especially severe and pervasive.

A related development will also have a huge impact on organizing. On August 24, 2023, the NLRB issued a final rule on election procedures that largely rescinds the 2019 Trump-era rules and returns to the 2014 Obama-era rules. The new rules will significantly speed up election procedures when they come into effect on December 26, 2023. Highlights include:

·         Pre-election hearings will take place eight calendar days after the filing of an election petition, rather than 14 business days later under the old rules

·         The Statement of Position by the party against whom the petition was filed must be filed within seven calendar days, rather than eight business days later under the old rules

·         A response to the statement of position will be given orally at the hearing, rather than a paper filing three business days prior to the hearing

·         The election will be scheduled more quickly after a Decision is issued by the NLRB

·         Check out the NLRB’s fact sheet on the final rule by clicking here 

These major changes promise to substantially tip scales toward workers and unions by helping to fix an issue that organizers know far too well: “representation delayed is representation denied.” WRR represented the Charging Party, International Brotherhood of Teamsters, in the Cemex matter.

Please reach out to your labor law counsel for advice on how to organize in this new legal landscape.