In the first memo since Cemex Construction Materials Pacific (372 NLRB No. 130), National Labor Relations Board (NLRB or the Board) General Counsel Jennifer Abruzzo provided guidance to NLRB Regional Directors, and ultimately employers, on the subject of mandatory recognition of union representation without the benefit of a secret ballot election.

The Cemex Decision

On August 28, 2023, in a major victory for unions and a reversal of over a half-century of precedent, the NLRB announced a new framework for determining when employers are required to bargain with unions without a representation election. Under the new framework, the burden is on the employer to petition the NLRB for a secret ballot election. If an employer does not do so, the NLRB will certify the union based on signed authorization cards alone and the employer will be required to begin collective bargaining. If the Board decides the employer committed any unfair labor practices during the election window, it has the discretion to reject the election petition and certify the union based solely on authorization cards. The only way to avoid such mandatory recognition is if the employer, in an unfair labor practice proceeding, proves the union did not have majority support or the claimed bargaining unit was inappropriate.

Notably, Cemex  held that nearly any unlawful conduct during the period preceding an election will prompt the NLRB to issue a mandatory “bargaining order” requiring union recognition despite an employer's petition for election.

The General Counsel's Memo

Following up on the expansive Cemex decision, Abruzzo stated the NLRB will seek bargaining orders under its new Cemex doctrine if employers fail to recognize a union or commit “even one” unfair labor practice in the run-up to a representation election. This includes non-hallmark violations.

“Employers act at their own peril in refusing to recognize and bargain and in making unilateral changes in employees' terms and conditions of employment after such a demand is made,” Abruzzo said in the memo.

“The Board will consider all relevant factors, including the number of violations, their severity, the extent of dissemination, the size of the unit, the closeness of the election (if one is held), the proximity of the misconduct to the election date, and the number of unit employees affected,” she said.

Ultimately, the memo provides an incentive for unions to file more unfair labor practice charges alleging labor law violations that previously would not have resulted in remedial board orders.

Post Cemex

NLRB administrative law judges have already issued two rulings in cases where the Board's lawyers sought Cemex bargaining orders.

One judge ordered a cannabis company to recognize and bargain with a union because the employer fired key organizers after a majority of employees at a Massachusetts store signed a letter and presented management with a demand for recognition.

However, a different judge declined to issue such an order against a Las Vegas warehouse that fired its workers before they signed union authorization cards and requested recognition. Instead, the judge ordered the company to hire back the workers and said what happens next depends on its “subsequent conduct and/or the election results.”

Takeaways

  • Companies need to train managers and supervisors more about how to respond if workers ask for voluntary recognition and what to do in the lead-up to an election. Cemex could allow for a bargaining order based on violations that include interrogation or surveillance.
  • Cemex eliminates any requirement for unions to file a NLRB election petition before an employer may be required to grant union recognition. Instead, a union can demand recognition based on a claim of majority support. Authorization cards may be used to show majority support.
  • If a union makes a claim of majority support, the employer must (1) immediately grant recognition without any NLRB election, or (2) file its own NLRB petition seeking an election.
  • If the employer fails to take either step, the NLRB will order mandatory union recognition, with no election, unless the employer, in a later unfair labor practice proceeding, proves that the union did not have majority support or that the claimed bargaining unit was inappropriate.
  • Nearly any unlawful conduct during the period preceding an election will prompt the NLRB to issue a mandatory “bargaining order” requiring union recognition despite an employer petitioning the NLRB for an election in response to a union recognition demand. 

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