The governing law for selecting a bargaining representativeis found primarily in section 9 of the NLRA.1 Selection (or decertification) of a union can occur by three related processes:

• Employees can file a petition or a union can do so on their behalf, known as an “RC” petition (Certification of Representative)
• An employer can file a petition, known as an “RM” petition (Employer Petition)
• Employees or someone acting on their behalf may file a petition that questions the continued representative status of a current bargaining representative, known as an “RD” petition (Decertification)

The filing of a petition by a union typically follows an intense period of organizing activity by professional union organizers with the support of employees. Among other things, the petition must describe the scope of the unit of employees that is sought to be organized and who may, therefore, vote in a secret-ballot election. Furthermore, an employer’s conduct during this period is subject to a complex set of rules, any violation of which can result in negative consequences, including:

• Unfair labor practice charges;
• Nullification of election results; and
• An order to bargain with a union without an election or despite the union’s loss of an election.

Cemex: A New Election Landscape

For decades, if a union requested voluntarily recognition, an employer could refuse, at which point the union would file a petition for election. Further, if an employer committed an unfair labor practice charge before the election but after the union asserted majority support, the Board would normally order that a new election be run. In only rare instances of truly egregious unfair labor practices during the critical period before an election, the Board would issue a bargaining order mandating the employer recognize and bargain with the union.

On August 25, 2023, the Board announced a new framework in Cemex Construction Materials Pacific, for when employers must recognize a union without an election.2

In Cemex, the Board found that, while an employer is free to challenge the majority status of a union by requesting an election after the union requests voluntary recognition, the employer may not unlawfully delay the election through interference. The Board now holds that an employer violates the Act “by refusing to recognize upon request, a union that has been designated as a Section 9(a) representative by a majority of employees in an appropriate unit unless the employer promptly files [an RM petition] to test the union’s majority status of the appropriateness of the unit, assuming the union has not already filed [its own RC petition].” In a footnote, the Board stated the employer generally has two weeks to file an RM petition.

Additionally, if the employer commits virtually any unfair labor practice during the critical period, the employer will be subjected to automatic recognition of the union. Violations can be as innocuous as an overly broad employee handbook policy implemented years before the election.

Since the Cemex decision, the Board experienced a 27% increase in union recognition petitions and a significant jump in RM petitions from fiscal year 2023 to 2024. This trend is likely to continue as unions and employers respond to Cemex moving forward. On October 21, 2024, the Ninth Circuit Court of Appeals heard oral argument in the appeal of Cemex.

On October 21, 2024, an administrative law issued a bargaining order for the first time under Cemex.3 Though the administrative law judge cited to Cemex, the judge ultimately concluded the result would have been the same under NLRB v. Gissel Packaging Co. because the employer’s conduct was sufficiently pervasive and egregious due to the number of violations and the seriousness of those violations.

Just two months later, the Board adopted another administrative law judge's bargaining order under Cemex where an employer violated the Act by granting wage increases and benefits to employees in response to an organizing campaign.4 The Board determined that the timing and nature of the benefits were intended to undermine the union's support, thus making a fair election impossible.

But not all violations during the critical period result in a Cemex bargaining order. One administrative law judge refused to issue a Cemex bargaining order where an employer prohibited employees from recording conversations discussing the union's organizing effort pursuant to its Video Recording, Audio Recording, and Photography policy during the critical period. The employees' attempt to record concerned the organizing effort and to collect evidence of potential violations. A manager additionally told the employee that recording her consent violated company policy. Though the judge found the employer violated the Act, the judge also determined that the prohibition was both isolated and minimal, thus declining to issue a Cemex bargaining order.

Under the new Cemex framework for elections, it’s important that employers take steps to prepare to respond quickly and effectively should they receive a request for voluntary recognition, such as training their management teams on legal rights and responsibilities, reviewing handbooks for compliance with new NLRB case law, and preparing to litigate bargaining unit and supervisory issues on short timelines under the new election rules discussed in the following sections.

Expedited Elections

The NLRB’s expedited election rules, often referred to as the “ambush election” or “quickie election” rules, went into effect on April 14, 2015.

These were expected to significantly shift the playing field and make it far easier for unions to organize employees. Under the rules, employers have significantly less time to educate their employees about the pros and cons of unionization, and also must adhere to tight deadlines to provide information about employees, which can be time-consuming and burdensome. Moreover, the rules severely restrict the ability of an employer to challenge improper electioneering by the union or the appropriateness of the proposed bargaining unit.

Although the ambush election rules were subject to various challenges in the courts, they were ultimately upheld by the Fifth Circuit.5

In December 2019, a Republican-majority Board announced significant revisions to the expedited election rules (“2019 final rule”). The AFL-CIO filed suit to block the changes from taking effect. In response, a district judge issued an injunction preventing five substantive changes from taking effect, including a change from the expedited rules that would have allowed employers to litigate most voter eligibility and inclusion issues before the election, and a change that would have given employers five business days (instead of only two) to furnish a voter eligibility list to the union. The NLRB filed an appeal from the injunction.

The district judge did not grant the AFL-CIO’s request in full, however, so several changes to the Board’s election rules took effect on May 31, 2020, including:6

• A pre-election hearing will be held at least 14 days (rather than eight days) from issuance of the notice of hearing.
• The notice of election shall be posted within five days instead of two days.
• Changes in the timeline for serving the employer’s (or other party that did not file the petition) statement of position.
• Requiring the petitioner (usually the union) to serve a written position statement in response.
• Parties are permitted again to file post-hearing briefs.
• The regional director has discretion on the timing of a notice of election after the direction of an election.
• Automatic ballot impoundment procedures when a request for review of a pre-election decision (such as voter eligibility) is pending at the time of an election.

Subsequently, in January 2023, the D.C. Circuit Court of Appeals ruled that three challenged provisions of the 2019 final rule were improperly enacted without appropriate notice and comment:7

1. Allowing employers up to five business days to furnish the voter list following the direction of election;
2. Precluding regional directors from issuing certifications following elections if a request for review is pending or during the time in which a request for review could be filed; and
3. Limiting a party’s selection of election observers to individuals who are current members of the voting unit whenever possible. Those provisions have never been in effect because they were previously enjoined by United States District Court for the District of Columbia.

The expedited election rules still in effect include:

• Employer Must Prepare and File a Position Statement to Identify Disputed Issues. An employer must prepare and file a comprehensive “statement of position.” In that position statement, the employer must identify any issues regarding the composition of the proposed bargaining unit; day, time and place of the election; and other election-related matters. Any issues omitted by the employer from its statement are waived by the employer and may not be raised later unless the employer can show good cause for the omission.
• Employer Must File a Preliminary List of Voters as Part of the Required Position Statement. The employer must also provide a preliminary list of voters with names, work locations, shifts and job classifications in the proposed unit, but without contact information, to the petitioning union (and any other parties) and to the regional director. If the employer contends that the proposed unit is inappropriate, the employer shall separately list the names, work locations, shifts and job classifications of all individuals, if any, that it contends must be added to or excluded from the proposed unit to make it an appropriate unit.
• More Discretionary Authority to Regional Directors and Less Pre-Election Resolution of Disputes Concerning Unit Placement, Exclusions and Eligibility. The regional director will decide the issues to be litigated in each case. The hearing officer may solicit offers of proof on any or all issues. If the regional director determines that the evidence described in the offer of proof is insufficient to sustain the proponent’s position, the evidence shall not be received.
• Voter List Requirements. Employers must provide the full names, home addresses, email addresses, telephone numbers, work locations, shifts, and job classifications of eligible voters within two business days of the regional director’s approval of an election agreement or direction of an election. This is not only a shorter time frame (it was seven calendar days), but for the first time requires personal telephone numbers and email addresses that are reasonably available to employees. The rules also require that the list be produced in electronic form unless the employer lacks the capacity to do so. This voter list is in addition to the preliminary list of voters noted above, even though the names on both lists may be (and many times will be) identical.
• Earlier Elections. Elections are held “as soon as practical,” thereby permitting elections to be held as early as only a few days after the regional director’s decision (assuming nonemployer parties waive their right to have the voter list at least 10 days before the date of the election).
• Electronic Filing of Petitions and Other Documents Permitted. Petitions and other documents are permitted to be filed electronically rather than by hand or regular mail.

In August 2023, the NLRB adopted a final rule largely reversing the amendments made by the Board’s 2019 election rule. The goal of the 2023 rule is to expedite elections, and the rule reestablishes tight timelines on hearing dates and elections, and shortens the amount of time employers have to respond to requests for recognition, election petitions or filing RM petitions.

Highlights of the rule are included in the following chart. The rule went into effect on December 26, 2023.

1. 29 U.S.C. sec. 159