NLRB Allows Employees to Unionize Without an Election

Employers will be more vulnerable to union organizing

On August 25, 2023, the National Labor Relations Board (NLRB or “Board”) announced in Cemex Construction Materials Pacific LLC, 372 NLRB No. 130 (2023), a new framework for determining when employers are required to recognize and bargain with unions. For five decades, it was the NLRB’s policy that, if an employer was presented with a demand for recognition by a union claiming to represent a majority of its employees, the employer could legally refuse to recognize the union, thereby forcing the union to file a petition with the NLRB for an election if it wanted to be recognized as the employees’ representative. The Board has now abandoned and turned that policy upside down by replacing it with a framework that places the burden on the employer, instead of the union, to request an election when a union demands recognition. And if the employer fails to do so promptly, the employer risks having to recognize and bargain with the union without an election ever occurring.

Under Cemex, when a union presents an employer with evidence that a majority of its employees have designated the union as their collective bargaining representative, the employer will have three options:

1. Immediately recognize the union. Upon being presented with evidence of the union’s majority support, under Cemex, the employer can voluntarily recognize the union as its employees’ representative and enter into collective bargaining negotiations with the union. Unions typically rely on union authorization cards or petitions signed by employees to claim majority support. However, nothing in Cemex requires that a union’s claim of majority support be supported with any particular form of evidence.
2. File an NLRB petition for an election within two weeks. If an employer is presented with a demand for recognition and doubts the union’s majority status―or wishes to test the union’s majority support and/or challenge the appropriateness of the union’s proposed bargaining unit―the employer may request that the NLRB hold an election by filing a petition with the NLRB within two weeks of receiving the union’s demand for recognition.
3. Take no action and defend against a charge of refusing to bargain. An employer presented with a demand for recognition may choose, at its peril, to neither respond to the demand nor file an election petition. However, if neither action is taken, the union may file an unfair labor practice charge under § 8(a)(5) of the National Labor Relations Act for failing and refusing to recognize and bargain with the union. If the NLRB then determines that majority support for the union exists, it will issue an order requiring the employer to recognize and bargain with the union. In such case, the obligation to bargain will attach as of the date of the union’s demand for recognition.

In addition to this new framework upending longstanding precedent governing how unions can obtain recognition, the Cemex decision changes the remedy when an employer is found to have committed an unfair labor practice during an election campaign. Under the prior standard, if an employer committed an unfair labor practice during what is known as the “critical period”―the period between the filing of an election petition and the election―the NLRB would order a rerun election. However, the Board announced in Cemex that, going forward, any unfair labor practice committed during the “critical period” that previously would have resulted in a new election will now result in the setting aside of any election and an order requiring the employer to recognize and bargain with the union from the date the union demanded recognition. Thus, even where employers timely file election petitions, they will have to act with the highest degree of caution during the election campaigns to avoid having a favorable election outcome set aside.

As a result of the changes brought about by Cemex, the law governing unionization is now tilted decidedly in favor of unions, and employers will be more vulnerable to union organizing. Employers will have less time to react to union organizing efforts and will need to be ready to respond promptly to a demand for union recognition to both preserve all of their rights and to avoid having a union foisted upon them. At a minimum, employers should train their supervisors and managers to recognize the signs of union organizing and how to respond to it properly to avoid unfair labor practice charges. Employers should also consider adopting policies and procedures for how to process and respond to a union demand for recognition.

Additional Assistance

Our attorneys remain ready to provide advice and guidance on complying with these new laws or any other workplace issues. For further assistance, please contact any of the attorneys on our Labor and Employment Practice Team or the Phillips Lytle attorney with whom you have a relationship.