The number of employer requests for union elections has exploded since the National Labor Relations Board (NLRB) adopted a new framework for representation last summer. In the six months following the NLRB’s release of its decision in Cemex Construction Materials Pacific, LLC, in August 2023, employers have submitted 254 union election petitions. In the six months before the decision was issued, employers only filed nine petitions. That’s an astounding 2,700% increase and, without a doubt, a direct result of the Cemex decision.
What Does This Mean for Employers?
In Cemex, the NLRB found that the employer engaged in more than 20 instances of objectionable or unlawful misconduct during the “critical period” between the signing of union authorization cards by employees or the filing of an election petition by the union, and the union election itself.
For example, the NLRB found that the employer threatened employees with closures of certain company locations, job loss, and other reprisals if they voted in the union. What makes the decision so significant is that the NLRB took the opportunity to transform the union election process.
Prior to Cemex, if at least 30% of workers signed cards or a petition saying they want a union, the NLRB conducted a secret ballot election, and if a majority of voters opted for the union, the NLRB certified the union as the representative for collective bargaining. Alternatively, if at least 50% of workers signed cards or a petition, the employer could voluntarily recognize the union but wasn’t required to do so.
When the employer declined to voluntarily recognize the union, the union had to file a petition for election (pre-Cemex, very few representation petitions were filed by employers). If the employer allegedly committed an unfair labor practice during the critical period, the NLRB could order a second secret ballot election after determining the employer remedied whatever unfair labor practices were substantiated, to ensure employees had a free and fair opportunity to vote for or against the union.
Now, however, when a union says it has majority support of workers and requests recognition, Cemex requires that an employer either recognize and bargain with the union or file a petition for an election within 14 days.
Further, if an employer commits an unfair labor practice during this time, the NLRB will order it to recognize and bargain with the union, as if the union won the election. Significantly, the NLRB will no longer order a re-run election in cases where the employer commits virtually any unfair labor practice, and instead will skip right to issuing a bargaining order.
In theory, then, Cemex gives unions a relatively quick path to bargaining if it doesn’t file for an election and the employer fails to submit its own timely election petition.
Following the decision, the NLRB’s General Counsel, Jennifer Abruzzo, released a guidance memo, which she announced is intended to “assist all in comporting with the goals of the [NLRB]’s Cemex decision to eliminate delays in effectuating employees’ expressed free choice of bargaining representative.”
In the memo, Abruzzo stated that, under Cemex, if employers fail to recognize a union or commit “even one” unfair labor practice in the run-up to a representation election, the NLRB will seek bargaining orders.
The Stakes Are Extremely High
The NLRB’s replacement of re-run elections with bargaining orders heightens the stakes for violations of labor laws after a union demands recognition. Combined with the NLRB’s recent rule significantly speeding up the timeline for union elections, it’s critical that employers understand what to do (and what not to do) when approached to recognize a union.
Employers should reach out to experienced labor and employment counsel with any questions and should strongly consider training supervisors and managers on how to respond to efforts to unionize their workforces.
Meaghan Murphy is an attorney at the firm of Skoler, Abbott & Presser, P.C., and can be reached at MMurphy@skoler-abbott.com. Tim Murphy is a partner at the firm of Skoler, Abbott & Presser, P.C., and can be reached at TMurphy@skoler-abbott.com.