John Stewart
Thu, 09/07/2023
On August 25, 2023, the National Labor Relations Board (“NLRB” or “Board”) issued a decision in Cemex Construction Materials Pacific, LLC, that establishes a new, employee-friendly standard for determining when an employer has unlawfully refused to recognize and bargain with a majority representative.
With Cemex, the Board reverses its prior interpretation of the governing law, as set forth in Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 309–310 (1974). Under the Linden Lumber interpretation, an employer was free to refuse to bargain with a majority representative—even one with a majority of authorization cards in hand—until that representative successfully filed for and won an election. Now, when a union requests recognition, having been designated by a majority of employees in the appropriate bargaining unit, an employer must either recognize the union and bargain or promptly file an RM petition seeking an election.
Moreover, under Cemex if an employer who has requested an election then commits an unfair labor practice that would result in the election being set aside, the employer will not receive a second chance; the petition will be dismissed and the employer ordered to bargain. As Board Chairman Lauren McFarren was quoted in a press release concerning Cemex, the decision “reaffirms that elections are not the only appropriate path for seeking union representation,” authorization cards may be sufficient as well. Ultimately, “an employer is free to use the Board’s election procedure, but is never free to abuse it—it’s as simple as that.”
If you have questions about your right to organize, form a union, or collectively bargain, or believe you have been denied any other protected rights or employment benefits, please reach out to MSE at info@mselaborlaw.com.
