We previously reported in August on the National Labor Relations Board’s decision in Cemex Construction Materials Pacific, NLRB Case No. 28-CA-230115, 327 NLRB No. 130 (August 25, 2023), wherein the Board overruled long-standing precedent and adopted a new scheme to provide labor unions with an easier path to unionizing a company.
On Tuesday, November 2, 2023, the NLRB’s General Counsel, Jennifer Abruzzo, issued a Guidance Memorandum in Response to Inquiries about the Board’s decision in Cemex, in which she made it clear that, “an employer confronted with a verbal or written demand for recognition” that states a majority of employees in an appropriate bargaining unit have signed authorization cards must: 1) recognize and bargain with the union; 2) file a petition within two (2) weeks with the NLRB seeking an election or challenging the appropriateness of the bargaining unit; or 3) await the processing of a petition for an election previously filed by the union (if it filed one). If an employer does not do one of these three things, the union can then file an unfair labor practice charge for the company’s refusal to bargain and it can request a remedial bargaining order.
The Guidance Memo additionally provides that the demand made to an employer “does not need to be made on any particular officer or registered agent of an employer so long as it is on a person ‘acting as an agent of an employer.’” Thus, according to the NLRB’s General Counsel, unions can seek out an unsuspecting supervisor on which to make its demand, and then sit back and wait two weeks before filing an unfair labor practice charge in which it seeks an order requiring the company to recognize and bargain with the union without an election having been held.
The Guidance Memo further discusses when certain unfair labor practices that are committed during the pendency of an election petition will result in the dismissal of the election and a bargaining order being issued.
In light of the GC’s Memo, employers should ensure that any individuals acting as an agent of the employer, as defined by the National Labor Relations Act and the Labor Board (i.e., statutory supervisors), are aware of their responsibility when they are approached by an employee who asserts a recognition demand on behalf of a union, and also are aware of proper conduct when an election petition is pending.
If you have questions about the Guidance Memo, or a general labor or employment question, feel free to contact Joel Hlavaty or any member of Frantz Ward’s Labor & Employment Group.