Historic NLRB Decision Changes When Employers Must Recognize and Bargain with Unions

In a monumental sea change, on Aug. 25, 2023, the National Labor Relations Board (NLRB) issued a decision in Cemex Construction Materials Pacific, LLC announcing a new rule for deciding when employers must bargain with unions without a representation election.  

Under the new rule, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer has the following options:

• recognize and bargain with the union; or
• expeditiously file an election petition seeking an election.   

The NLRB held that an employer may file an election petition without objective evidence of a good faith reasonable doubt regarding the union’s claimed majority status. Furthermore, the deadline for filing for an election will normally be two weeks.

However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election during the time between the filing of an election petition and the occurrence of the election (unless the violations are so minimal or isolated that it is virtually impossible to conclude that the misconduct could have affected the election results) – the election petition will be dismissed by the NLRB. The NLRB will then require the employer to recognize and bargain with the union instead of allowing for the election to be re-run.

It should be noted that the new standard outlined in Cemex differs from the historical Joy Silk standard. The historical Joy Silk standard required an employer to bargain with a union unless it had a good-faith doubt of the union’s majority status.

While the Cemex decision is likely to be appealed, these changes will have a profound effect on non-union employers who may have little to no experience in labor law. It is important that employers learn how this process works and what to do if confronted by a unionization drive.

For questions regarding how this will affect your business, please contact Michael G. Tierce or the Stevens & Lee attorney with whom you regularly work.