On August 25, 2023, the National Labor Relations Board (NLRB or the Board) decided that employers must either recognize a new union or promptly file for an election when a union asks for recognition based on a majority of workers showing support. The decision, Cemex Construction Materials Pacific LLC, 372 NLRB No. 130 (2023) (“Cemex”), establishes a new framework for determining when employers are required to bargain with unions without a representation election, abandoning the well-established Linden Lumber framework, which allowed employers to refuse to accept evidence of majority support of a union. 190 NLRB 718 (1978). This decision is just another way the Biden administration’s NLRB is providing a major boost to unionization efforts across the country.
For decades the Board has issued bargaining orders for three reasons: (1) the union was certified through a Board election; (2) the employer voluntarily recognized the union; and (3) the rarer Gissel bargaining order where an employer’s coercive conduct made the guarantee of a free election impossible. NLRB v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). The Cemex decision has now provided two additional reasons the Board will issue a bargaining order. First, if a majority of employees in an appropriate bargaining unit have designated a union as their representative, through authorization cards, but the employer refused the union’s request for recognition, the Board will issue a bargaining order, unless the employer files a timely petition for a Board election. This will likely be referred to as a Cemex Bargaining Order. Second, if the employer files a timely election petition but commits a meaningful unfair labor practice(s) during the lead-up to the election, the Board will issue a bargaining order.
According to the Board, “Under Cemex, an employer is free to use the Board’s election procedure but is never free to abuse it—it's as simple as that.” In Cemex, the Board found that the employer engaged in more than 20 instances of objectionable or unlawful misconduct between the filing of the election petition and the election. Because of the unfair labor practices (ULPs), the employer was subject to a bargaining order under the newly announced standard and the Gissel standard. In so holding, the Board further explained that “the revised framework represents an effort to better effectuate employees’ right to bargain through their chosen representative, while acknowledging that employers have the option to invoke the statutory provision allowing them to pursue a Board election. When employers pursue this option, the new standard will promote a fair election environment by more effectively disincentivizing employers from committing unfair labor practices.” But how does this decision really fare for employers?
What This Means for Employers
At the most basic level, when an employer receives a request for recognition on the basis that a majority of employees in a proposed bargaining unit have designated the union as their representative, the employer has the following options:
- Immediately recognize the union. The Board’s position, and obvious goal, in Cemex is to have the employer accept a union’s majority representation because it fears the expense and struggle if it commits a ULP after the representation demand is made. The Cemex decision, however, does not address how this framework will likely trap employers into recognizing a union that potentially lacks majority support or into situations in which a union obtained employee authorization cards based on coercion or misrepresentation. It is a ULP for employers to recognize a non-majority union, and so it remains to be seen how the Board will handle these situations.
- File an election petition within two weeks. The Board’s Cemex decision squarely requires the employers to file for an election, not unions. It is now the employer’s obligation to seek an election within two (2) weeks from when the demand for recognition is made. The employer also has an additional burden of challenging the alleged card check majority if it files a petition. Under Cemex, the Board stated, “The employer is also fully free to contest the union’s claim by presenting evidence in a hearing conducted pursuant to Section 9(c)(1)(B) that the union’s showing of majority support is deficient because of irregularities in the procurement of cards or otherwise.”
- Take no action and defend a refusal to bargain ULP. If the employer does not immediately recognize the union or files an election petition in a timely manner, a ULP charge will be brought against it. The employer can challenge the ULP charge and can explain its basis for refusing to recognize. However, this route is not for the risk-adverse. Given the current makeup of the NLRB and the difficulty in discovering the evidence necessary to claim union coercion, manipulation, or other evidence that undermines the majority status claim, a favorable outcome is unlikely.
All of the above options will require an employer to stay vigilant for any potential unionization campaigns, without committing any ULPs, to quickly assess what to do when presented with a demand for recognition. For example, is the proposed unit an appropriate unit? Does the union really have a majority of authorization cards for the proposed unit? Were the authorization cards lawfully obtained without coercion or misrepresentation? Based on all the factors, one employer’s approach may differ from another’s.
But one thing is true for all employers: A ULP during the unionization campaign or in the critical time between the election petition and election that prevents employees from exercising free choice in a timely way will guarantee a bargaining order. An employer needs to treat a union-organizing campaign like walking through a field of landmines. One wrong step, or in this case, a single unlawful statement or action, could result in a bargaining order without the opportunity for a rerun election. Employers should fully expect union representatives to be quick to file a ULP during an election campaign.
Given the many pitfalls an employer can stumble into and the severity of every potential stumble, employers and supervisors need to know how to lawfully manage a unionization campaign.
- Early detection of card signing. Without using unlawful surveillance, it is important for employers to know who is trying to unionize and which employees are being targeted for unionization.
- The importance of messaging. To avoid the perilous dilemma of receiving a recognition demand, try to prevent a majority of authorization cards by engaging in early and lawful messaging to the targeted employees.
- Train employers and supervisors. Supervisors are the first line of defense against unionization and are the personnel whom employees go to when they have questions about unionization. Train supervisors early on about what they can and cannot say or do to avoid ULPs.
- Act quickly but knowledgeably. If you do receive a demand for recognition, you need to make an informed decision swiftly. You have two (2) weeks to file an election petition, and that time should be spent learning about the union, how it obtained the authorization cards signed, and who the proposed bargaining unit is.
Employers with questions or concerns about how Cemex will impact their current business should contact the authors of this article or any member of Venable's Labor and Employment Practice Group for guidance.