The National Labor Relations Board (NLRB) recently decided a case (Cemex Construction) that will allow the board to issue bargaining orders when an employer’s actions are found to interfere with a “free and fair election.”

The decision rejected the standard put in place by the Supreme Court 54 years earlier (the Gissel case) , which gave employers options when presented with signed cards from a majority of employees indicating support for unionization.

In the new ruling, the NLRB determined that if there is evidence that the employer has committed an “unfair labor practice” (ULP) during the “critical period” (the time between filing of a petition and the election), the NLRB may issue a mandatory bargaining order.  The bargaining order eliminates the need for an election and was previously used only when the employer had committed an egregious violation.

The former standard allowed an employer to reject authorization cards as proof of majority support for unionization thus forcing the union to file an election petition.  The new standard articulated in Cemex requires employers to either: (1) recognize the union’s majority status, or (2) if the union has not already filed an election petition, within two weeks the employer must file an “RM petition” (i.e., representation petition) for an election to test the union’s majority.  The employer may file the RM petition without a good faith doubt as to the veracity of the cards.

The Cemex case involved an employer who was found to have committed unfair labor practices before, during and after the “critical period” of an election campaign, with a union that had signed authorization cards from a majority of the affected employees.   The unfair practices included disciplining employees for placing stickers on their hard hats and issuing an order not to speak with union organizers on work time.

The NLRB issued a bargaining order to the employer, departing from its earlier standard which would call for such an order only if the employer’s actions made a free and fair union election impossible.

The decision in this case and another recent NLRB case (Stericycle) calling for greater scrutiny of workplace rules for potential National Labor Relations Act (NLRA) violations demonstrate the current NLRB’s strong protection of NLRA rights that may impact union and non-union businesses alike.  Employers should ensure that their supervisors and managers are trained in appropriate actions to take (and those to avoid) when dealing with a union election, as a misstep can result in a bargaining order.

Given the complexity of managing Labor Relations in the workplace, employers should consider working with outside counsel familiar with actions under the NLRA if necessary.

Members with questions about human resources matters may call the AIM HR Helpline at 800-470-6277.