Cemex Decision Examined: How the NLRB Dramatically Changed the Unionization Process
On August 25, 2023, the National Labor Relations Board (NLRB) issued a historic and paradigm shifting decision that we covered in a previous post.
In short, the NLRB dramatically changed the process of how a union can be formed in the workplace. Instead of the union being required to file for an election with the NLRB, the union can now simply demand an employer recognize and bargain with the union if the union is able to collect a majority of union authorization cards from an appropriate unit of employees. If this occurs, the onus shifts to the employer to file for an election to test the union’s claim. Importantly, however, if an employer violates federal law during the campaign period, the NLRB will immediately cancel the election and issue a bargaining order which will treat the employees as “unionized” and require the company to begin to bargain with the union.
Following our initial analysis, we received many questions about what has specifically changed with how unions can come into a company to represent its employees. Below is a simple FAQ to answer those questions.
How did elections work before the Cemex Decision?
If a union had the requisite support of your employees (evidenced by the signing of union authorization cards), it could ask a company to voluntarily recognize the union. In other words, it could ask the company to just agree to allow the union to represent its employees. The company, however, was free to ignore the request. If a company did so, the union was required to file with the government for an election. The NLRB would then conduct an election and if a majority of employees voted for the union, then those employees would be unionized. If a majority of employees voted against the union, the company would remain union free.
The reason why companies would rarely voluntarily recognize a union and instead would insist on the union filing for an election is because signing a union authorization card in support of a union is very different from voting for a union in an election. Often employees sign cards simply to get more information about the unionization process. Very often, unions have lost elections where they asked the company for voluntary recognition and the company refused.
How do elections work after the Cemex Decision?
If a union has the requisite support (evidenced by the signing of union authorization cards), it can still ask the company to voluntarily recognize the union. However, the company can no longer simply ignore the request. Instead, the company must either voluntarily recognize the union or, if the company wants a vote, it is now the company that must file with the government for an election. Importantly the company must act quickly.
How long does the company have to file for an election now?
What happens if the company doesn’t file for an election in two weeks?
The company waives its right to file for an election. Simply put, the company now has a union.
So now there is an election—what has changed about the election process?
Before the Cemex decision, if a company violated federal labor law during the election process and the violations were proven, the government would typically order a rerun election. Only in the rarest of circumstances, would the government order that the union represent your employees notwithstanding the election results.
After the Cemex Decision, in virtually all instances, if the violations are proven then the company will be forced to recognize the union notwithstanding the election results. That’s right – if a company violates one labor law during the course of the election period the NLRB will essentially deem the company as having “lost” the election and it will very likely have a union.
Labor laws are very technical and even the most well-meaning companies can inadvertently violate these laws. Therefore, if a union approaches a company and requests that the company voluntarily recognize the union, it would be prudent to contact experienced labor counsel immediately for strategic guidance through the process.