On August 25, 2023, the National Labor Relations Board (“NLRB” or “Board”) issued a decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130, overturning decades of NLRB precedent regarding the representation election process – that will more easily allow unions to represent workers without a secret ballot election and requires businesses to either recognize unions based on authorization cards or risk having to recognize them if the business commits any labor law violation.

In Cemex, the Board announced a new framework for determining when employers are required to bargain with unions without a representation election. The Board found that the employer in Cemex engaged in more than 20 instances of objectionable or unlawful misconduct during the critical period between the filing of the election petition and the election. Accordingly, the Board held that businesses that commit labor law violations are now required to bargain with unions without holding formal elections. This decision has wide-reaching impacts for all unionized employers.

For the past half-century, when an employer is confronted with a union’s demand for recognition, the employer could insist that the union seek a Board-conducted secret ballot election before an enforceable statutory bargaining obligation. Now, according to the NLRB in Cemex, when a union seeks recognition based on a majority of workers signed authorization cards, an employer will be in violation of the National Labor Relations Act (NLRA) unless it either recognizes the union or “promptly” files for an RM petition calling for an election (assuming that the union has not already filed a petition). In Cemex, the Board defined “promptly” to mean that the employer must file its RM petition calling for an election within two weeks of the union’s demand for recognition (allowing for unforeseen circumstances that may be presented in a particular case).

If an employer fails to recognize the union nor promptly file a petition, under Cemex, the union may file a Sec. 8(a)(5) charge against the employer for failing to bargain in good faith and based solely on the majority-signed authorization cards, the Board will find that the employer failed to bargain with the union in good faith.

Even after promptly filing an election petition, Cemex holds if the employer commits any unfair labor practice, the Board will set aside the election petition (whether filed by the employer or the union) and issue a bargaining order requiring the employer to recognize and bargain with the union.

After Cemex, employers should promptly request a secret ballot election within the two-week deadline of the union’s demand for recognition. In addition, employers should review and revise their employee handbook and work rules to remove anything that could be interpreted as an unfair labor practice.

Accordingly, employers should consult their attorneys for questions on the new rules outlined in Cemex.