New Guidance On NLRB’s Cemex Decision

Volume: 22 | Issue: 49
November 16, 2023

The General Counsel to the National Labor Relations Board (NLRB or Board) has published a guidance memorandum to explain how the Board’s Regional Offices should apply the new decision in Cemex Construction Materials Pacific, LLC. As we discussed in September, the Board radically changed the union recognition process in the Cemex decision.

The new framework adopted in Cemex puts the burden of seeking an election upon the employer, instead of the union. An employer faced with a union’s demand for recognition on the basis that a majority of employees in a bargaining unit support union representation can no longer insist that the union file an election petition with the Board. Now, the employer must either recognize the union and begin bargaining or “promptly” file an “RM election petition” with the Board for an election to test the union’s majority status and/or the appropriateness of the proposed bargaining unit. Cemex also drastically changes the impact of unfair labor practices committed before the election. Now, if even one unfair labor practice is committed that would warrant setting aside an election, the Board may dismiss the employer’s election petition and order the employer to recognize the union and bargain.

The General Counsel’s guidance provides additional details about this new process. And while it is always helpful to have more information, the information provided is far from good news. The new details are: 

  1. The union’s demand for recognition can be verbal or written and does not need to be delivered to any particular officer or registered agent of the employer as long as the demand is made to a person “acting as an agent” of the employer. A demand can also be made via an “RC petition” as long as the union checks the “request for recognition” box on the form.   
  1. The demand should clearly state the unit for which the union is claiming majority support. The employer can ask to view the evidence of majority support but the union is not obligated to produce it.
  1. Once the demand for recognition is made the employer must either agree to recognize the union or “promptly” file an election petition with the Board. “Promptly” means within 2 weeks – just 14 days. If the employer fails to act, the union may file an unfair labor practice charge based on a refusal to bargain which can lead to an order requiring the employer to recognize and bargain with the union.
  1. An employer’s challenges to the composition of the unit proposed by the union should be made with the election petition.
  1. Unfair labor practices committed before the election petition is filed or while it is pending can lead to a dismissal of the petition and an order to bargain. An employer who discriminates against an employee in violation of the National Labor Relations Act – by, for example, discharging a union supporter (a section 8(a)(3) violation) – will receive a bargaining order. Interference charges (section 8(a)(1) violations) can also result in a bargaining order unless they are so “minimal or isolated that it is virtually impossible to conclude that the misconduct could have affected the election results.”
  1. The critical period begins when the demand for recognition is made.

Given this new procedure and the importance of the 14-day time period to file an election petition, employers should train supervisors and HR/labor relations professionals about this new procedure, how to recognize a demand for recognition, and what to do if one is received. Training is also needed to help supervisors avoid potential unfair labor practices. Employers are also wise to train employees about card campaigns so that they understand their rights before the union comes knocking.

The attorneys of KZA are well versed in labor law and can help you address this new procedure and train your staff. In the meantime, we will keep you updated on additional Cemex developments as there is an appeal pending at the Ninth Circuit Court of Appeals.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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