NLRB Makes It Easier To Unionize Your Business
By Lindner & Marsack, S.C.
August 28, 2023
In its August 25, 2023, decision, the National Labor Relations Board (“NLRB” or “Board”) paved the way for a union to represent employees without a formal vote. Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130.
The case involved Cemex, a multinational construction materials company, and the Teamsters, who were seeking to organize a bargaining unit consisting of Cemex’s ready-mix drivers. A majority of Cemex’s ready-mix drivers signed authorization cards signaling their desire for the Teamsters to serve as their bargaining representative. The Teamsters then petitioned for a Board election. According to the Board, in the lead up to the vote, Cemex management engaged in multiple unfair labor practices (ULP), including discharging a driver for union activity, and threatening job losses, wage freezes, reduced benefits and other reprisals if the union was successful in its efforts. The Board held the election and the Teamsters lost, 179-166.
Historically, unfair labor practices like that occur during an organizing campaign unless particularly severe, would result in a second election, if the union had lost the first. Under Cemex, however, the Board held that if an employer commits unfair labor practices during a campaign significant enough to require the setting aside of an election, the Board will issue a bargaining order rather than a second election.
In addition, the Board held that when a union collects authorization cards from a majority of employees in an appropriate bargaining unit, unless the employer promptly files an election petition with the Board, the Board will issue a bargaining order. According to the Board, “promptly” means within two weeks, unless extenuating circumstances are present.
Therefore, if a union presents an employer with proof that a majority of employees have signed cards, unions can request that the employer begin bargaining. If the employer refuses for more than two weeks and has not filed for an election, the union can file a ULP charge with the Board, and the Board will order the employer to bargain.
However, if an employer who petitioned for an election violates federal labor law in a way that would require setting aside the election, the petition will be dismissed, and the NLRB will order the employer to recognize and bargain with the union. This is a significant change from precedent, which allowed employers to refuse to accept evidence of majority support of a union and required that the union petition for a representation election.
The Board stated, “[t]he Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment….” The Board also stated that an employer has the right to challenge a union’s claimed majority via the election process but is not allowed to abuse that process.
Employers presented with authorization cards by a union should immediately confer with labor counsel and petition for a representation election. Employers may then make lawful efforts to combat unionization in the lead up to the election. Failing to petition for an election will now guarantee that the union will represent at least a segment of the employees of your business.