On October 14, 2024, the National Labor Relations Board (NLRB) announced that the number of union organizing petitions filed from October 1, 2023, to September 30, 2024, increased nearly 30% from the same period the year before and more than doubled from the same period in 2021.
Why Have Union Certification Petitions Increased?
A significant factor driving the increase of union certification petitions is the NLRB’s August 2023 Cemex Construction Materials Pacific LLP decision. Cemex shifted the burden of proving claims of support from unions to employers.
Before Cemex, the burden was on unions to prove majority status by filing union authorization cards signed by employees with the NLRB and then winning a majority of votes in a secret ballot election. There was no employer obligation to recognize a union based on union authorization cards.
Under Cemex, if a union shows the employer proof that a majority of employees wish to be represented by the union, the employer is obligated to either: (1) recognize and bargain with the union; or (2) file a petition with the NLRB for a secret ballot election. Typically, unions will offer signed union authorization cards or a petition signed by employees as proof of majority status.
Now, if the employer fails to voluntarily recognize the union or request an election within two weeks from when the demand for recognition is made, the NLRB will presume the union represents the employees and order the employer to recognize and begin bargaining with the union.
As a result, the number of employer-filed election petitions has skyrocketed over 2000% since the Cemex decision, explaining the increase in union election petitions.
Incentive to File
Consider the incentive that Cemex has created. An employer could be caught unaware and ignore the union’s showing of majority interest. If this occurs, the NLRB can and will order the employer to recognize and bargain even if the union’s proof of majority support was, ultimately, lacking.
This seismic shift in the burden of proving majority support creates an incentive for unions to present employers with proof of support that it knows is insufficient in the hopes the employer fails to take action, and it obtains recognition by NLRB order.
Takeaway
Don’t get caught in this trap. If you are presented with purported evidence of majority support for a union, don’t ignore it. Filing a petition with the NLRB may be the only way to avoid union recognition. Contact an experienced traditional labor attorney immediately and avoid the pitfall of union organization by NLRB order.
Aaron Graves and Cameron D. Ritsema are attorneys with Bodman PLC and can be reached at agraves@bodmanlaw.com and critsema@bodmanlaw.com.