On August 25, 2023, the National Labor Relations Board issued its decision in Cemex Construction Materials Pacific LLC (N.L.R.B., Case 28-CA-230115) – upending over fifty years of established law and setting forth a new, union-friendly framework for determining when employers are required to recognize and bargain with unions without a representation election. The Board’s press release on the decision can be found at this link.
Under Cemex, an employer has three options when a union requests recognition on the basis that a majority of employees in a bargaining unit have designated the union as their representative.
First, an employer may immediately recognize and bargain with the union. The Board expects that this will occur within two weeks after the demand for recognition. Second, an employer may file a petition for election within two weeks of the union’s demand. If an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed and the Board will order the employer to recognize and bargain with the union. Third, if the employer does not take any action within two weeks, it risks an unfair labor practice (ULP) charge based upon its refusal to bargain.
In each case, the ruling in Cemex places the burden on the employer to challenge a union’s alleged majority status and/or the employer’s obligation to bargain.
The Board’s decision revives some elements of the standard set forth in Joy Silk Mills, a 1949 ruling that required an employer to bargain unless it had a good-faith doubt of the union’s majority status. The decision also overturns the Board’s 1971 ruling in Linden Lumber, which abandoned the Joy Silk Mills doctrine following the U.S. Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and held that employers may refuse to accept evidence of majority support of a union. The Board did not, however, adopt the good-faith doubt aspect of the Joy Silk Mills decision.
Although the Cemex decision may be challenged on appeal, employers must prepare to respond to demands for recognition. Ballard Spahr’s Labor and Employment Group regularly advises clients on navigating the shifting landscape of NLRB decisions and regulations.