Two critical recent National Labor Relations Board decisions that limit opportunities for employer abuse of the elections process provide openings for IBEW organizers, just as new laws increase demand for electricians. One reinstates a rule that speeds up the election process, and the other makes it more difficult for employers to avoid bargaining.
On Aug. 25, the NLRB ruled in the Cemex Construction Materials Pacific, LLC decision that if a unit can show majority support, an employer must either recognize and bargain with a union or file a petition for an election.
The NLRB announced in a statement accompanying the ruling a new framework that will facilitate employees’ right to bargain through chosen representatives and improve the fairness of board-conducted elections.
“This is huge,” said Austin W. Keyser, assistant to IBEW President Kenneth W. Cooper for Government Affairs. “It changes the game.”
Aside from the determination that an employer must recognize the union or petition for a secret ballot election, the decision also says that if an employer commits an unfair labor practice that requires setting aside the election, the NLRB will dismiss the petition. Rather than rerunning the election, the board will order the employer to recognize and bargain with the union.
“The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation while also ensuring that when elections take place, they occur in a fair election environment,” said NLRB Chairman Lauren McFerran. “Under Cemex, an employer is free to use the Board’s election procedure, but it’s never free to abuse it – it’s as simple as that.”
In this case, the board cited more than 20 examples of objectionable or unlawful conduct by the employer between filing the election petition and the election.
The new rule, effective on Dec. 26, introduces meaningful consequences for employer coercion and illegal behavior that often goes unpunished in organizing campaigns. Many observers blame the tilted playing field that overwhelmingly gives the advantage to employers for the long-term decline in union membership in the United States.
Also in late August, the NLRB announced its intention to restore an organizing election rule to counter a common employer response to a campaign: dragging out the process by filing time-consuming litigation and wearing down enthusiasm for an organizing effort.
The new speedy election rule, also set to take effect on Dec. 26, reinstates a similar directive adopted during a previous administration but overturned by Trump appointees. Once implemented, related legal challenges will not prevent an election from moving forward.
“The swifter the election, the better for the organizing campaign,” said IBEW Fifth District International Representative James Flynn, who spent more than 15 years as an organizer.
McFerran said in a public statement upon releasing the changes on Aug. 24 that timely, fair elections are pillars of U.S. labor law.
“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,” she said.
The National Labor Relations Board is a federal agency that protects workers’ rights. The NLRB conducts hundreds of elections and investigates thousands of unfair labor practice charges yearly. The five-member board, which issues administrative decisions like the Cemex case, is a quasi-judicial body.
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