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With the CEMEX Decision the Labor Board Shifts the Duty to Employers to Avoid Unionization

On Behalf of | Oct 16, 2023 | Employer Defense

The National Labor Relations Board has taken a new path to facilitate unionization of the workplace, creating new challenges for those employers that prefer to safeguard their union-free environment. Now it is much more difficult for employers to exercise their first amendment rights to oppose unionization, because of the consequences that will now be imposed by the Labor Board if the employer does not comply with the precedent set forth in Cemex.

In the Cemex Construction Materials case, the National Labor Relations Board shifted the obligation to employers to call for an election when a union claims majority support. If the employer does not file an “RM Petition” in a timely manner seeking an election, then the union could become the collective bargaining representative of the employees without an election. The employer could be forced to recognize and bargain with the union without an election, based on majority support as demonstrated by signed, union authorization cards.  And, if during the course of an election to decide the issue of representation, if the union objects or files unfair labor practice charges alleging employer misconduct, such as employer coercion, the same could be met with severe consequences. In this instance, the Labor Board would also likely order the employer to recognize and to bargain with the union without a rerun election.

Staying the course?

Skeptics claim that for the new direction to remain in place, the current approach must be allowed to continue. They cite three attempts to move forward with unions without the need for formal elections. Concurrently, labor lawyers and law professors anticipate an eventual legal challenge to this latest Board decision, particularly with a conservative US Supreme Court that has already expressed concern over the authority of a powerful National Labor Relations Board (NLRB).  However, until and unless successfully overturned by the U.S. Supreme Court, this current Labor Board precedent is the new rule under which employers must comply.

Cemex now shifts the duty to employers to file a petition to call for an election to prevent automatic recognition of the union through employer inaction. It abandons the prior procedure that required unions to file an RC Petition to request an election when employers refused to recognize and bargain with the union.  This is a monumental shift in the procedure to determine a union’s majority status, which previously  turned on the presence of a good-faith doubt about a union’s majority support among workers. Now the burden rests solely with the employer to call for an election or risk automatic recognition of the union without an election.

Mandates in place

Cemex mandates that employers recognize a newly established union. Their other option is to file for election within two weeks when the union claims majority support from workers. Failing to pursue that route carries serious consequences, including a bargaining obligation without an election. And in other cases, employers may be ordered to recognize and bargain with the union to remedy unfair labor practices during the course of an election that might have previously resulted in only a rerun election.

Should employers try to sidestep federal labor laws and ignore union demands for recognition the results could be disastrous. However, the resulting complexity of the unionization process can create chaos for both employers and union members.  If an employer violates federal labor law in a way that would require setting aside the results of the vote, then the NLRB will now likely set aside the election petition and order the employer to recognize and bargain with the union.  Clearly, this is a consequence that most employers would prefer to avoid.  In this current, labor-friendly climate, the best safeguard is for an employer to be pro-active in addressing perceived problems before its employees initiate a union drive.  As this can be a difficult process to navigate, labor relations professionals can often provide guidance to help protect a union-free environment.