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In continuing to fulfill President Biden’s goal of being the most pro-union administration, the National Labor Relations Board recently made it much easier for unions to expand their membership. In Cemex Construction, the Board announced that employers who receive a union request for recognition are required to either recognize the union or promptly file a petition for an election, assuming the union does not file a petition. However, if the employer does not recognize the union and commits an unfair labor practice prior to the election, the Board will order the employer to recognize and bargain with the union, even if a majority of the employees vote against union representation.
Background. Upon being appointed NLRB General Counsel, Jennifer Abruzzo announced that one of her goals was to have the agency return to the standard the Board created in 1949 in Joy Silk Mills. From 1949 to 1971, employers were required to recognize and bargain with a union that presented evidence that a majority of the employees in a prospective unit desired representation unless the employer had a good-faith doubt as to the union’s claim. In 1971, in Linden Lumber, the Board overturned Joy Silk and gave employers the right to require unions to prove their majority status through an NLRB secret-ballot election. Under the previous standard, if an employer engaged in objectionable conduct or committed unfair labor practices prior to the election, the Board would normally order a new secret-ballot election. While the Board had the ability to order more severe remedies, including forced recognition and bargaining with the union, that type of remedy was reserved only for cases in which an employer committed such egregious unfair labor practices that it rendered a fair election unlikely.
The New Standard Under Cemex Construction. In Cemex Construction, the Board overturned 52 years of precedent since Linden Lumber and fashioned an entirely new framework for union recognition. Under the new framework, an employer confronted with a union request for recognition has two choices: (a) recognize the union and begin bargaining, or (b) file a petition within two weeks requesting a secret-ballot election, assuming the union does not file a petition. The employer may pursue the petition process if it desires to test the union’s claim of majority status or challenge the appropriateness of the proposed unit of employees. The employer does not need to prove that it has a good-faith doubt, as Joy Silk required. However, any petition for an election comes with a risk. If a manager or supervisor commits an unfair labor practice that requires the Board to set aside the election results, the Board will no longer order a new election. Instead, the Board will now dismiss the petition, disregard the employee votes, and order the employer to recognize and bargain with the union retroactive to the date the union requested recognition.
If an employer ignores a union’s request for recognition, and neither the union nor the employer files a petition for an election within two weeks, the union may file an unfair labor practice charge over the employer’s refusal to recognize and bargain. The Board will find a violation unless the union failed to obtain majority support in an appropriate unit. The Board’s remedial bargaining order in such a case would require the employer to recognize and bargain with the union retroactive to the date the union requested recognition.
Next Steps for Employers. When confronted with a request for voluntary recognition or pursuit of an election, an employer may face a difficult decision. The typical campaign leading to an NLRB election may require considerable employer time and resources as well as potentially cause a disruption of operations. However, those resources and efforts will be wasted if one supervisor or manager commits an unfair labor practice prior to the election. The unfair labor practice could be just one overbroad workplace rule or employee handbook policy that causes the NLRB to dismiss the petition and force the employer to recognize and bargain with the union. (See our previous Compliance Matters™ update on the Board’s revised standard for reviewing facially neutral employer work rules.)
Now, more than ever, it is important for employers to scrutinize all workplace rules and policies, as well as to ensure that all supervisors and managers are trained on employee rights and understand how to avoid committing any unfair labor practices. We anticipate that a petition to review the Board’s Cemex Construction decision will be filed with the U.S. Court of Appeals. While a court may alter the outcome for the employer in this case, several experts have said that the Board’s new framework is likely to be upheld, as every court did with the Joy Silk framework.
We will continue to monitor developments, and should you have any questions about the new Cemex Construction framework, please call or email your firm contact.
Sincerely,
Richard S Rosenberg
Matthew T. Wakefield
Charles W. Foster
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