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► NLRB Authorizes Union Recognition Without Election

On August 25, the National Labor Relations Board (NLRB) issued a monumental decision in Cemex Construction Materials Pacific, LLC, enacting a new framework for unions to gain recognition without a formal represen-tation election.

What Cemex Ruling Says

Under the Cemex ruling, an employer must either recognize and bargain with a union claiming majority support or promptly file a petition seeking an election challenging whether the union has majority status and whether the alleged majority is an appropriate bargaining unit.

Failing to promptly file a petition when the union hasn’t itself filed a petition for an election will result in an unfair labor practice charge against the employer. Likewise, if the employer commits any unfair labor practice after the union’s request for recognition, the Board will now dismiss the employer’s petition for election and order it to bargain with the union.

Before this 3 to 1 decision, absent circumstances that support a finding of serious unfair labor practices by the employer, even if an employer was found to have committed a less significant unfair labor practice leading up to an election, a second election would take place. Now, an unfair labor practice finding will result in an order from the Board for automatic recognition of the union and the requirement to bargain with that union.

Restoring Joy Silk

The Cemex decision restores certain elements of the Joy Silk standard, which has been dormant for more than 50 years. Under Joy Silk, an employer was required to bargain with a union if it demanded recognition and advised the employer of its majority status, unless the employer had a “good faith basis” to doubt the union’s majority status. NLRB General Counsel Jennifer Abruzzo intends to resurrect Joy Silk, which appears to be happening.

Unlike Joy Silk, however, the Cemex standard doesn’t consider whether employers seeking an election have a good-faith doubt about the union’s majority status. Rather, the Cemex decision holds that any unfair labor practice finding after the union’s demand for recognition will, in effect, result in a bargaining order requiring the employer to recognize the union.

Takeaways

Moving forward, you must be diligent and promptly petition for an election if a union claims majority support and you don’t want to voluntarily recognize the union. You must also eliminate risks of conduct that could be considered an unfair labor practice—or face an order to bargain without the benefit of an election.
 

By Michael J. Moore and Ashley Faulkner. Mr. Moore is an attorney with Steptoe & Johnson PLLC in Bridgeport, W.V. Ashley Faulkner is an attorney with Steptoe & Johnson PLLC in Morgantown, W.V.

[10/2023]

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