New Rule: Union Loses Election and NLRB Orders Bargaining

Your Severance Agreements Are Probably Unlawful

Remember way back in August when we told you about the NLRB ruling in Cemex that changes union elections and bargaining? Yeah, I didn’t think so. Here are the new rules:

  • A union can demand recognition based on a claim of majority support without filing election petition to NLRB.
  • The employer must grant recognition without an election or can file its own election petition (RM petition) for NLRB election.
  • If the employer does not act, the NLRB orders mandatory union recognition unless the employer later proves the union did not have majority support or claims the bargaining unit was inappropriate. How? In an unfair labor practice (ULP) with the NLRB.
  • If the employer petitions for an election, any unlawful conduct before the election will prompt the Board to issue a mandatory bargaining order. (That is what happened here.)

The first case post-Cemex involved the I.N.S.A. cannabis company in Massachusetts and it did not go well for the pot shop. Administrative Law Judge Andrew Gollin in Boston ruled that I.N.S.A. Inc fired union supporters and engaged in an array of other unlawful conduct leading up to a 2022 election, rendering the chances of a fair vote unlikely. Translation: your behavior before the election was so bad we are recognizing the union in spite of the actual results.

The Upshot:

President Biden’s administration is finally getting its back into union support, a goal since the election. If you receive a union petition, tread carefully and call employment counsel. We can help.