NLRB Issues Insight into Cemex Decision

Last week, the National Labor Relations Board (NLRB) Office of the General Counsel (GC) issued an instructive memorandum to all Regional Directors outlining its position on the recent Cemex decision. Although this highly technical memorandum does not constitute binding NLRB law, it does provide important insight into the GC’s position regarding union recognition and the new requirements that employers will have to abide by regarding bargaining obligations.

The memorandum answers many outstanding questions that employers have voiced, namely:

  • Bargaining Orders: Bargaining orders will be issued for conduct occurring during union organizing, not simply after a demand for recognition.
  • Union Recognition: The demand for union recognition doesn’t need to be given to a particular officer of an employer. This means the demand could be made on an unsuspecting supervisor.  
  • Majority Support: The union is not required to show the employer its evidence of majority support – even when the employer asks. Further, even when the employer requests a neutral third-party to review the cards for verification of majority support, the two-week deadline for an employer to file an election petition will not be tolled.
  • Employer Files Election Petition: If an election petition is filed by the employer, the Region will determine if the proposed unit of employees is appropriate based on the union’s demand – not what is proposed by the employer in the employer’s own petition.

If you have any questions or concerns regarding the recently released Cemex decision, or how this memorandum will be used as a guidepost for NLRB Regional Directors, please contact Daniel J. Sobol or Brandon S. Shemtob.