A decision issued by the National Labor Relations Board on Friday establishes a new framework for determining when employers are required to bargain with unions without a representation election.

“Under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election,” the board said. “However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and — rather than re-running the election — the Board will order the employer to recognize and bargain with the union.”

The new rule, coming out of Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters, takes effect Dec. 26.

“It is a basic principle of the National Labor Relations Act that representation cases should be resolved quickly and fairly,” NLRB Chair Lauren McFerran said in a statement. “By removing unnecessary delays from the election process, the new rule supports these important goals, and allows workers to more effectively exercise their fundamental rights.”

The rule, according to the NLRB:

  • Allows pre-election hearings to begin more quickly;
  • Ensures that important election information is disseminated to employees more quickly;
  • Makes pre- and post-election hearings more efficient; and
  • Ensures that elections are held more quickly.

The NLRB said that the new standard “will promote a fair election environment by more effectively disincentivizing employers from committing unfair labor practices,” but Ogletree Deakins attorneys Eric C. Stuart, C. Thomas Davis and Zachary V. Zagger wrote in an article for the National Law Review that “[t]he impact of the rule is to make it more difficult for employers to educate employees about unions and unionization prior to a vote.” 

The new rule rolls back some provisions of a Trump-era rule regarding union representation hearings. Among the changes, pre-election hearings generally will be scheduled to open approximately 10 days sooner than under the 2019 rule, according to the NLRB. The new rule also limits regional directors’ authority to postpone pre-election hearings compared with the 2019 rule.

“Employers should prepare for increased union-organizing activity as unions will be incentivized to attempt to organize workplaces given the truncated election procedures,” Kilpatrick, Townsend & Stockton attorneys John Alden, Chirstiphers Caiccio and Andrew Williamson wrote for JD Supra. “Given the truncated election procedures, it is vital that employers evaluate their susceptibility to union organizing and act proactively to address potential weaknesses.”

Unfair labor practice charges and union representation petitions are on the rise, the NLRB previously noted. 

A total of 10,792 unfair labor practice and union representation cases were filed with the NLRB’s 48 field offices across the country during the first half of fiscal year 2023 — Oct. 1 to March 31— up 14% over the same period in fiscal year 2022.