Game-changing. That’s the only way to describe the NLRB’s Cemex ruling. And now, over a year after the decision, its true impact is becoming clear.

We await a Circuit Court (and perhaps even a Supreme Court) decision on whether the NLRB has the authority to upend over 60 years of precedent in what employer behavior qualifies for a potential bargaining order. In the meantime, we’re stuck with a massively altered playing field in organizing elections.

Companies and their counsel are understandably concerned about this changed playing field. A bargaining order is basically the death penalty in labor law. Being forced to recognize and bargain with a union that hasn’t proven majority status in a supervised election is an extreme remedy. 

Historically, the Supreme Court’s Gissel framework used this extreme remedy only in cases where the employer’s activity was also extreme. It required the General Counsel to prove that the employer committed numerous hallmark violations and that a free and fair election was impossible. Cemex changed all that.

Now, the tripwire for a bargaining order is on a hair trigger. Even one unfair labor practice after a union claims to represent a majority of employees and a bargaining order is clearly a risk. And even while the original decision is on appeal, Administrative Law Judges and the Board itself have begun issuing bargaining orders under the new standard. It is having its intended effect of chilling protected employer speech.

Cemex is effectively designed to be a “prior restraint” on employer speech. Employers understandably want to avoid a draconian bargaining order based on even minor infractions. Attorneys are understandably gun-shy about what actions their clients should take once a union claims to represent a majority of workers. How should companies respond to this tilted playing field?

There are a couple of options. The most aggressive approach is just to ignore the ruling. This may sound dangerous but hear me out. The Board itself regularly asserts something called “non-acquiescence” with Circuit Courts of Appeal. The NLRB considers a Circuit Court opinion only “law of the case.” If the Court tells the Board they’re out of bounds, they reinterpret the ruling. Like a game of Uno, if a Circuit Court plays the “you can’t do this” card, the NLRB just plays a Reverse card, reinterpreting the decision as saying, “You can’t do that in this case.” 

The Board takes this position even when the Circuit Court clearly rules that the agency has no authority to act. It’s as outrageous as it sounds and irks the Circuit Courts. But basically, the Board says the only Court it really has to listen to is the Supreme Court. And in the case of Cemex, they’ve taken the position that they don’t have to listen to the Supreme Court.

This is why one option for employers is to take your own position of “non-acquiescence.” Continue to operate as if the Gissel framework is the “law of the case” until the Supreme Court decides that the Board’s “hair trigger” bargaining order idea is a good one. This strategy obviously invites litigation. The General Counsel and the Board will undoubtedly apply the Cemex framework to any employer speech they deem unfair and will undoubtedly issue a bargaining order if they can. 

While aggressive, this approach seems warranted today. The Board has basically re-written its own statute, removing the protections for employer speech and a nearly 100-year tradition of allowing unions and companies latitude in their campaign speech. However, the Board cannot unilaterally force an employer to follow its rulings. Companies can (and are winning) appeals to the Circuit Courts and the Supreme Court. If any decision deserves the “non-acquiescence” treatment, it’s this one.

Many companies aren’t ready to be this aggressive. In that case, your approach must be proactive. While it’s always been important to respond to union organizing activity early, if you don’t plan to challenge Cemex, you want to run as much of your campaign as possible prior to a union’s demand for recognition. 

The Cemex “hair trigger” bargaining order framework doesn’t apply before a demand for recognition. Instead, the traditional Gissel bargaining order framework requires the General Counsel to prove that an employer has committed numerous severe violations of the Act. This is a much higher burden than under Cemex.

Employers should take full advantage of their free speech rights prior to a demand for recognition. This means:

• Train your supervisors to recognize and respond to the early signs of organizing activity. If you haven’t reviewed our MPulse supervisor training recently, it’s been fully revamped based on the Cemex ruling.

• Respond immediately to organizing activity, even if it seems premature. Employers often wait to communicate with employees until they know a union is gaining traction. That sometimes made sense before Cemex, but it no longer does.

• If you plan to communicate with your managers, you must plan for this in advance. That means training a response team and keeping their training refreshed and updated.

• You can’t communicate early if you don’t have your communication tools fully prepared in advance. Our customizable Campaign in the Cloud toolkits are also fully updated based on both the Cemex ruling and anticipating other Board restrictions on employer speech (for example, we’ve rewritten all content to anticipate a future Tri-Cast decision).

 Whatever strategy you decide on, it is critical to be clear on your approach before union activity. The game has changed, and it’s time to change your own game in response.