Expect an uptick in litigation at the National Labor Relations Board (NLRB) as companies prepare for unions leveraging a newly lowered standard for securing a bargaining order, catalyzed by the board’s latest Cemex doctrine. This development soundtracks a potential rise in companies hit with bargaining orders due to their failure in recognizing a union or committing a single unfair labor practice prior to a representation election, as cautioned by NLRB General Counsel Jennifer Abruzzo.
The advisory released on November 2 incentivizes labor unions to file more unfair labor practice charges that allege business violations of labor laws, violations that previously wouldn’t have led to remedial orders from the board.
Employers are on high alert, particularly considering the far-reaching implications of the NLRB’s innovative precedent in Cemex Construction Materials Pacific LLC. The recent doctrine appears to dramatically increase opportunities for labor unions to urge companies to the negotiating table.
Anticipating a subsequent surge in labor dispute charges, several companies are planning to increase training for their managers and supervisors. The necessity to respect workers’ organizing rights and avoiding legal missteps that could trigger a bargaining order under the Cemex standard raises the stakes and importance of such preparations.
Yet, despite the imminent challenge of adhering to the new doctrine, the appeals against this new standard are already underway, with matters potentially rolling up to the federal courts. Many remain uncertain about how this new doctrine will pan out, particularly with respect to what types of unfair labor practices might elicit a bargaining order.
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