On Friday, August 25, 2023, The National Labor Relations Board (NLRB) issued a highly anticipated decision in Cemex Construction Materials Pacific, LLC which fundamentally shifts the paradigm governing how unions organize American workplaces.
Prior to Cemex, unions seeking to organize a workplace needed to either:
- Demonstrate sufficient employee showing of interest (typically cards from at least 30% or more of the employees for the petitioned for unit) along with their petition to the NLRB seeking an election or
- Seek voluntary recognition from the employer by presenting a majority interest among the employees being sought to be represented.
Cemex removes the decades-old petition filing burden away from unions and places it squarely on employers. Now, when a union requests recognition based on majority interest, the employer must choose between commencing bargaining without an election or petitioning the NLRB for an election. And the employer must choose quickly: the NLRB imposed a two-week deadline for submission of an election petition when an employer is presented with a demand for recognition.
In an accompanying press release, the NLRB explained the new framework as follows:
[W]hen a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election. However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and—rather than re-running the election—the Board will order the employer to recognize and bargain with the union.
Essentially, the new Cemex framework absolves unions of the burden of seeking and conducting an election to certify themselves as the bargaining representative. Instead, it puts the onus on the employer in having to choose to either commence bargaining – without an election – or petition the NLRB for an election. Importantly, any unfair labor practice committed by an employer in the run-up to an election now results in immediate issuance of a bargaining order as opposed to a rerun election, which is the typical remedy (until now that is).
The NLRB positions the new framework as “an effort to better effectuate employees’ right to bargain through their chosen representative,” and a disincentive for employers to commit unfair labor practices. However, the new framework may actually incentivize unions to engage in gamesmanship to lure unwary employers into unwittingly committing unfair labor practices.
The NLRB issued the Cemex decision concurrent with a Final Rule restoring election procedures established in 2014 that were supplanted in 2019. The Final Rule shortens the deadlines in representation petitions. Most importantly, the Final Rule eliminates the twenty-business day waiting period for conducting an election, affording employers precious little time to counter union messaging that may have been ongoing for months.
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