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The Labor Law Insider - Forget the Election: Union Representation Without the Messy Election is the Next Labor Law Reality, Part II



Husch Blackwell partners Tom O’Day and Tyler Paetkau join Labor Law Insider host Tom Godar in Part II of this discussion of the impact of new Cemex decision by the NLRB. Suddenly, minor violations of the National Labor Relations Act—or even a single violation—could result in an order forcing recognition of a union without the union ever achieving majority status in a secret ballot election.

The Insiders also discuss the serious impact of a union election cycle reduced to only a couple of weeks, as well as the unprecedented employer obligation to file an election request with the NLRB upon presentation of a petition or cards claiming majority support of a union.

Responding to this new threat must include a review and audit of your handbook, policies, and offer letters. The Insiders recommend offering valuable training to supervisors and emphasizing and practicing the pro-employee values of your company.

It is even suggested that you have documents ready for when a union files in order to be up and running for the shortened election cycle even if you are successful in getting to a secret ballot vote.

The Labor Law Insider podcast shares the secret that forewarned is forearmed.

Listen to Part I

Read the Transcript

This transcript has been auto-generated using Adobe Premier Pro.

00;00;02;22 - 00;00;38;01
Tom Godar
Hello and welcome to the Husch Blackwell Labor Law Insider podcast. I'm Tom Godar your host and I'm glad that you've come along in this podcast. We welcome guests with practical expertise and experience regarding labor law issues, and they share their insights related to this ever changing area. The breadth of developments in laws related to unions and individual workers rights that we are experiencing under the Biden appointed National Labor Relations Board and led by General Counsel Jennifer Abruzzo, is unprecedented.

00;00;38;19 - 00;01;05;01
Tom Godar
These developments demand that employers and those giving counsel to organizations stay tuned into these changes and make necessary adjustments to their practices and policies. When President Biden was elected, he promised to have the most union friendly administration ever, and he is fulfilling that pledge. So buckle up and hang on for this wild and wonderful ride in the world of labor law.

00;01;06;02 - 00;01;47;12
Tom Godar
Thank you again for joining us on the Labor Law Insider. I am excited to continue our discussions with Tyler Paetkau and Tom O'Day regarding the impact of the Cemex Construction Materials Pacific LLC decision, which issued earlier this fall just a few weeks ago. In that decision, the board opined, and we're fearing that a single up or very modest, unfair labor practices committed by an employer during the timing related to a union election petition could result in a bargaining order without an election or with an election result that would have been skewed towards the employer continuing to engage without a union.

00;01;47;23 - 00;02;10;11
Tom Godar
This is pretty different stuff than we've seen for the last 50 years and we want to continue our discussion regarding that time. Tell us a little bit more about the nuts and grits of the NLRB decision and how that could impact the way in which employers have to conduct themselves in the context of a pre-election time period.

00;02;10;28 - 00;02;44;06
Tom O'Day
The dissenting member, Kaplan, pointed out that even one relatively minor unfair labor practice, like a broad confidentiality restriction in an employee handbook, could lead to the National Labor Relations Board, forgoing an election and ordering an employer and employees to bargain with their with the representative. The majority responded to that and said it's not minimalist. It still needs to make meat.

00;02;44;06 - 00;03;18;24
Tom O'Day
A number of different factors that show that the unfair labor practice that was engaged in us is still significant and it was an interesting back and forth. They talk about a number of factors that the National Labor Relations Board would and should look at in that circumstance. Things like the number of unfair labor practice charges, the number of employees who are subject to the unfair labor practices charged the relevance and timing of the unfair labor practice with the actual election itself, or the decision on the vote.

00;03;19;11 - 00;03;47;13
Tom O'Day
And we've now had our general counsel at the National Labor Relations Board issue her interpretation of the decision. And this just came out on November 2nd, where she is taking it, I think, a step further. She says the board advised that its new standard would likely result in a finding of an unlawful refusal to recognize and bargain based on even one and less serious violations of the national labor relations Act.

00;03;48;05 - 00;04;08;28
Tom O'Day
She goes on to point out that those factors are still relevant and that the board identified those factors. But I do think that it's going to be interesting to see how the general counsel in practice and how the different regions of the National Labor Relations Board in practice seek bargaining orders when there is a relatively minor, unfair labor practice that's alleged.

00;04;09;20 - 00;04;30;29
Tom Godar
Well, you can imagine, at least I've worked through a number of elections and activities related to them, where an employee who is pro-union or an employee who is not working appropriately under the rules and regulations that are established standards by the employer, gets disciplined, maybe even fired. And it's at that point that we find out she or he was or is pro-union.

00;04;31;12 - 00;05;04;09
Tom Godar
And suddenly that's an egregious behavior, even though you'd say, well, wait a minute, our handbook said that we could terminate you for failing to show up on time and all that kind of jest. But our handbooks now, especially people who've been following the labor law and said, remember, we talked about the story cycle decision can have just the handbook itself, even if not being enforced, could create a ULP because it would have the tendency to chill, protected, concerted activities if somebody was familiar with it and therefore they would not engaged in activities that should be protected.

00;05;04;23 - 00;05;15;18
Tom Godar
So even just a handbook might be the trigger for recognizing a union with that election. Am I being alarmist or is that is there some reality there? Tyler, what do you think?

00;05;15;24 - 00;05;59;06
Tyler Paetkau
Yeah, no, I don't think you're being an alarmist. You know, I would add it could be a non-disparagement provision in the severance agreement. It could be many things that we think are might, you know, minor in the relative scheme of things that could trigger a bargaining order, you know, a duty to recognize a union without an election. So it really just turns the board decisions over the last five decades on their head and reverses not only board president but U.S. Supreme Court and federal case law precedent, which is based on the idea, the concept, which I didn't think was debatable until this decision, which is, you know, employees can choose a union.

00;05;59;06 - 00;06;25;02
Tyler Paetkau
If it's a it's a fair and free election. It's their choice. Now, it it's really changed the playing field where you basically have two weeks. The employer does when they get a showing of support, either cards or or an election petition is filed to get your act together and file your own petition, or else you're going to be stuck with a bargaining order.

00;06;25;27 - 00;06;33;07
Tyler Paetkau
And it could be as minor as a handbook, an offending, overbroad, confidentiality or non-disparagement provision.

00;06;33;20 - 00;06;50;21
Tom Godar
Well, in this moment, I guess I'd rather be the boy who cried wolf than not have said anything. And then letting our clients and our friends find out on their own that something relatively minor could have a major implication. But talk to me a little bit more, Tyler, about this. You'll have two weeks to file your own petition.

00;06;50;29 - 00;06;57;25
Tom Godar
That's another change that's come out of this decision, is it not? That's employers having to file for four elections.

00;06;58;06 - 00;07;36;19
Tyler Paetkau
Right. So the when the employer is presented with a demand for recognition or authorization cards signed by a majority of employees, the employer has two options. One, recognize the union as the bargaining representative and you're off and running. You're in collective bargaining agreement and negotiations. Or if the union has not already filed an election petition, promptly file the employer's own are in petition for an election to determine majority status, and that must be done promptly, according to the board, which has been further defined as within two weeks of the union's demand for recognition.

00;07;37;03 - 00;08;03;08
Tyler Paetkau
So in the old days under Joyce Selke and then the 1971 board decision, Linden Lumber, employers would have at least the luxury of some time before the election actually takes place to campaign. There's a lot of educating going on. Depending on the workforce, they may have no familiarity with unions and union tactics. So we lose that ability now under this new standard.

00;08;03;08 - 00;08;08;04
Tyler Paetkau
And instead of a fair election, you're told you got to recognize the union.

00;08;08;15 - 00;08;32;09
Tom Godar
Well, and this is part as well of the board issuing rules, and we're not going to make this whole discussion on the election process. But in the last several weeks, the board has also issued the new 2023 final rule, which overturned the 2019 final rule. I love that you can have a new final rule. It's kind of like a rock band doing its second farewell tour, a third.

00;08;32;09 - 00;08;57;03
Tom Godar
But in this case, the board has returned largely to the Obama board standards of directing elections to occur like twice as fast as they might. And I'm not going to go into all of the details of the eight days to do that and two business days to serve. Notice of hearing and disputes regarding eligibility will be deferred and all that kind of just some of the some of our friends will know that we might have some more to say about it later.

00;08;57;03 - 00;09;16;19
Tom Godar
But essentially you're going to go from 30 to 40 days to have an election to 20 days. And part of this, of course, is that if you fail as an employer to go ahead and put in a petition, once you've been given a demonstration or cards claiming a majority status by the union and the union hasn't filed, if you don't file, you're stuck.

00;09;16;27 - 00;09;43;19
Tom Godar
And then if you do file, you've got a really short time to educate your employees about, you know, the thrills of having your union or remaining union free time. With all of that bad news, how should employers sort of practically approach this new dawn in union organizing and union power? I guess with the board's decisions and the shortened election cycle and so forth?

00;09;44;01 - 00;10;32;09
Tom O'Day
Right. We've said it before and part of the reason for the Labor Law Insider podcast is to encourage that pro active effort to make sure the employees are educated on their rights. Make sure your supervisors and managers know the processes and the rights both of the employer and the employees in any kind of campaign effort, and then have a plan for when you hear the rumors that there are employees or a union circulating authorization cards and seeking to organize in your workplace, like you said, the speed with which this happens will be accelerated significantly now and all the preparation that employers can engage in ahead of that campaign will be beneficial in the long run.

00;10;32;21 - 00;11;07;20
Tom Godar
I'm thinking that while some employers may occasionally have called upon us or others to assist them with sort of union familiarization and what to watch for and how to be proactively engaged in encouraging union or employee engagement rather than turning to a third party, this now amps it up so that you might actually have pre-written a position statement to the board regarding what an appropriate unit would be, because you're going to have so little time to do so before there's a unit hearing and that sort of thing.

00;11;08;03 - 00;11;19;11
Tom Godar
Tyler, do you think anybody's listening and doing that or are we going to see that when petitions filed, the employers are sort of twiddling their thumbs for five or six days now. Suddenly that's almost half the election time.

00;11;19;23 - 00;11;45;05
Tyler Paetkau
Well, I think that's why we're having this podcast done to get the word out. You know, as Tom O'Day pointed out, it's very short. Now, when you go from what used to be at least a month to two weeks and you've got to act right away. The more advance notice, the more planning, the better. You know, we as employment lawyers harp on training employees and training supervisors training h.r.

00;11;45;05 - 00;12;12;10
Tyler Paetkau
Two to know when you start hearing those rumors and the training really can be valuable here too to enable the employer to react quickly and even before there's a majority support for the union. In addition to that, just with a shorten time period, it's kind of nice if you do have those documents ready to go. The brief to the board on the bargaining unit, if there's a doubt about the unit or who should be included in it.

00;12;13;09 - 00;12;28;21
Tyler Paetkau
The more you have prepared, obviously, the easier, smoother it's going to go because it's really much more limited now. You don't have the luxury of of waiting to contact counsel a week later. You're already behind the eight ball.

00;12;29;02 - 00;12;53;02
Tom Godar
Yeah, I have come all the way to argue hard with whomever wants to listen. That one of the great mistakes any employer can make is not treating its employees like adults. We know that unions have been active. We just watched the GM strike, the strike against Ford and the Chrysler units. And it's a big deal. And we know that, you know, we've we've seen that sort of thing.

00;12;53;02 - 00;13;15;00
Tom Godar
I would frankly think that employers could go out right now long before a union shows up and says, I am pro employee and here's why. And actually running a sort of familiarization campaign about why that is long before they ever hear the word petition that they should be on record saying this is how we're going to try to conduct ourselves in an ethical way that that values our employees.

00;13;15;00 - 00;13;38;08
Tom Godar
And we don't really need and don't think we'll ever need a third party to help us do that. So I'm hoping that employers, frankly, invite unions by not taking those ethical steps to have a wonderful workplace. And I'm wondering that the price has now been increased significantly, that it might be more important than ever to be engage that way.

00;13;38;09 - 00;14;01;05
Tyler Paetkau
Yeah, I was going to go a step further, Tom, and suggest to employers, especially with those those who are some risk of having a union organizing campaign, is to really do an audit of their handbooks, their policies, their severance agreements, their offer letters to get a get rid of ticky tacky violations that might be overbroad confidentiality, as Tom mentioned,

00;14;01;16 - 00;14;19;06
Tyler Paetkau
non-disparagement, no rehire, things that we've heard about the last year or two, that the the board will seize upon, the unions will cite as a single unfair labor practice that would invalidate an election and or not allow one to happen at all.

00;14;20;01 - 00;14;29;17
Tom Godar
Good thoughts. Good thoughts. Tom O'Day and I have a final word, Mr. Paetkau just did have a final word from you before we leave this broadcast out.

00;14;29;26 - 00;14;49;22
Tom O'Day
I'll just echo what you said, Tom, about respecting employees and building those relationships on the front end. That's worth the investment in time. It's the encouragement that comes from the top of an organization all the way through management to that frontline manager to make sure that employees are feeling like they're in a place where they have the ear of the employer.

00;14;49;22 - 00;15;00;03
Tom O'Day
They might not get everything they want, but they feel respected, they feel heard. And an ounce of that and that kind of prevention and proactive activity. I think we'll have some success in keeping the unions away.

00;15;00;18 - 00;15;26;01
Tom Godar
Thanks so much again, Tom and Tyler. This has been a fantastic discussion of the Cemex decision is particularly fascinating because it ties into so much other activity that the National Labor Relations Board has been engaged in over the last two years in which we've been producing our Labor Law Insider. It's all coming together so that well, frankly, the roadway to having a union in your workplace is getting easier and easier.

00;15;26;01 - 00;15;34;21
Tom Godar
So stay tuned. In a couple of weeks, we'll have a greater update again and we'll look forward to joining the Labor Law Insider podcast.


Thomas P. Godar

Of Counsel

Tom O'Day