The National Labor Relations Board (“NLRB”) issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election. In the decision, the NLRB overruled the long-standing standard in Linden Lumber because, in the Cemex majority’s view, it was inadequate to safeguard the fundamental right to organize and bargain collectively.
In Cemex, the NLRB found that the employer engaged in over twenty instances of unlawful conduct after filing a petition for election was filed but before the election was held. In applying the new Cemex framework retroactively, the NLRB dismissed the petition and ordered the employer to recognize and bargain with the union.
The new Cemex framework creates a fundamental change of dynamics relating to the representation process. Under Cemex, when a union requests recognition based on a majority support of the employees to be in the bargaining unit, an employer must either: (1) recognize and bargain with the union; or (2) promptly file a RM petition to challenge the union’s claim of majority support by seeking an election, pursuant to Section 9(c)(1)(B) of the NLRA, unless the union has already filed a petition for a representation election pursuant to Section 9(c)(1)(A) of the Act.
The Board has also significantly shifted the remedy scheme for addressing cases in which an employer, after filing a RM petition but before the election, commits an unfair labor practice that causes the election to be set aside. Under long-standing precedent, typical remedies included conducting another election or, in cases of egregious violations, a Gissel order requiring the employer to bargain. According to the Cemex majority, however, that remedy scheme was inefficient and ineffective towards preserving a free and fair election. Now, under Cemex, the default remedy stands to be dismissal of the employer’s RM petition and an order for the employer to recognize and bargain with the union.
Cemex represents a significant pivot by the Board away from long-standing precedent and represents a return significantly closer to the long-idle Joy Silk doctrine. The Board, however, stopped short of entirely reviving Joy Silk insofar as it made clear that the new framework does not require an employer’s “good-faith doubt” of a union’s majority status to file a RM petition. Rather, under Cemex, the employer’s subjective view of the union’s majority status is immaterial.
The impact of Cemex is expected to be profound. Unionization efforts are reported to be at peak levels compared to recent decades. Employers should fully expect that trend to continue following Cemex and should be fully prepared in terms of responding to a union’s request for recognition based on majority support, and in terms of mitigating the risk of unfair labor practices during the critical period between the filing of an RM petition and the representation election. Missteps could lead to a requirement to recognize and bargain with the Union under Cemex.