On August 25, 2023, the National Labor Relations Board (the “NLRB”) released its long awaited Cemex Construction Materials Pacific (“Cemex”) decision. See NLRB Case No. 28-CA-230115. The crux of the Cemex case revolved around how to hold election procedures when an employer has allegedly committed unfair labor practices during the “critical period” of an election campaign between the filing of the election petition and the election itself. The NLRB responded to that question by instituting a framework that hearkens back to the Joy Silk standard used over 50 years ago, which required employers to bargain with a union unless it had a good-faith doubt of the union’s majority support among employees.

The new framework requires that when a union requests recognition, an employer must either agree to bargain with the union or promptly file an RM petition challenging, (1) whether the union has majority support; or (2) whether there is an appropriate bargaining unit. Further, under this new framework, if an employer who seeks a secret-ballot election commits any unfair labor practices – no matter how insubstantial or unintentional – the RM election petition would be dismissed. And important here, instead of the NLRB re-running the election, the employer will be ordered to recognize and bargain with the union. Before this decision, absent findings of serious unfair labor practices, milder unfair labor practices during the critical period would result in a re-run. However, the Cemex decision now says otherwise.

The effect of the Cemex decision is (1) the institution of a modified Joy Silk doctrine that will prompt employers to elect card check, (2) a lower threshold for the issuance of a bargaining order without holding an election, and (3) a highly unpredictable and volatile mechanism for determining how employers can challenge unionization and when they might be subject to mandatory bargaining orders without an election. The NLRB’s decision has been met with stiff criticism from employees who feel forced to accept unions and employers who feel the need to be hypervigilant regarding union recognition and conduct around elections because they may now be deprived of opportunities to directly campaign against union representation.

Ultimately, the NLRB’s Cemex decision will force employers to be efficient and diligent regarding the filing of a petition for election, or otherwise, be very careful about conduct that the NLRB might consider an unfair labor practice. Failure to do either can result in an “de-facto” union being formed.