Human Resources

Newsletter September 2023 Update

At the end of last month, the NLRB issued a Rule that will require union elections to be held on the “earliest date practicable” after a Direction of Election is issued. Prior to this, it was at least 20 days following the Direction of an Election.

The purpose of this Rule is to make it easier for a union to win an election to obtain the right to represent the employees of an employer. Employers will now have almost no time to educate employees in a campaign against the union. Unions normally lose some support during such campaigns.


In a departure from 50 years of settled law, the NLRB announced in a case decision, Cemex, that an employer may not refuse to bargain with a union that claims to have the support of a majority of employees. Such support is almost always shown through signed union authorization cards.

After the Cemex decision, an employer faced with a union demand for recognition really has only 2 choices: bargain with the union (accepting it as the employee’s representative); or file a petition with the NLRB requesting a union election.


In Cemex, the NLRB also changed over 50 years of law as to when it would issue a Remedial Bargaining Order. A Remedial Bargaining Order sets aside the results of a union election won by an employer, and requires the employer to bargain with the union. In the past these were very rarely issued, and only in instances where the employer engaged in outrageous and pervasive unfair labor practices before an election.

Under Cemex, the NLRB will issue a Remedial Bargaining Order if an employer commits “any unfair labor practice sufficient to set aside an election” between the filing of a petition for an election and the election. Too early to say what type of unfair labor practice will meet the new criteria, but you can bet it won’t take much.

In summary, the NLRB is doing everything it can to set the table for unions to organize as many workplaces as possible. The courts may reign in some of these renegade actions, but only time will tell, and in the meantime, employers are stuck with them.