On August 25, the National Labor Relations Board (the Board) issued a monumental decision in Cemex Construction Materials Pacific, LLC, enacting a new framework for unions to gain recognition without a formal representation election.
Under the Cemex ruling, an employer must either recognize and bargain with a union claiming majority support or promptly file a petition seeking an election challenging (1) whether the union has majority status and (2) whether the alleged majority is an appropriate bargaining unit. Failing to promptly file a petition, when the union has not itself filed a petition for an election, will result in an unfair labor practice charge against the subject employer. Likewise, if the employer commits any unfair labor practice after the union’s request for recognition, the Board will now dismiss the petition for election filed by the employer and order the employer to bargain with the union.
Prior to this 3-1 decision, absent circumstances which support a finding of serious unfair labor practices by the employer, even if an employer was found to have committed a less significant unfair labor practice leading up to an election, a second election would take place. Now, a finding of an unfair labor practice will result in an Order from the Board for automatic recognition of the union and the requirement to bargain with that union.
The Cemex decision restores certain elements of the Joy Silk standard, which has been dormant for more than 50 years. Under Joy Silk, an employer was required to bargain with a union if it demanded recognition and advised the employer of its majority status, unless the employer had a “good faith basis” to doubt the union’s majority status. We previously wrote on Board General Counsel Jennifer Abruzzo’s intention to resurrect Joy Silk, which appears to be coming to fruition in part.
Unlike Joy Silk, however, the Cemex standard does not consider whether employers seeking an election have a good-faith doubt as to the union’s majority status. Rather, the Cemex decision holds that any finding of an unfair labor practice after the union’s demand of recognition will, in effect, formulaically result in a bargaining order requiring the employer to recognize the union.
Moving forward, employers must be diligent and promptly petition for a union election if a union claims majority support and the employer does not want to voluntarily recognize the union. Employers must also work to eliminate risks of conduct that could be considered by the Board to be an unfair labor practice—or face an order to bargain without the benefit of an election.
