NLRB Restores Modified Path to Union Representation Without Election

The National Labor Relations Board (NLRB) on August 25 issued a decision announcing a stronger framework for establishing an employer’s duty to bargain with a union that has gained the support of a majority of employees. This new framework also deters common but unlawful union-busting tactics by employers.

The case, Cemex Construction Materials Pacific, LLC, represents a modified revival of the Joy Silk doctrine (dormant since 1971), which had required employers to bargain with a majority union on demand unless the employer had a good-faith doubt that the union was supported by a majority of its employees. The new Cemex standard preserves Joy Silk’s core validation of employee choice by authorization cards and petitions, but gives employers three lawful options once they are presented with a demand for recognition:

The employer can immediately recognize and begin bargaining with the union;
The employer can “promptly” (i.e. within two weeks) file a petition with the Board for an election to test the union’s majority status or challenge the bargaining unit; or
The employer can wait for an election based on a petition filed by the union.

If an employer does not promptly choose one of these three options, then the NLRB can find that they have committed an unfair labor practice and order the employer to bargain with the union. Further, if the employer choses option 3 – to wait for an election before beginning to bargain – Cemex sets forth new consequences for unlawful threats, coercion, retaliation, or union-busting tactics that “frustrate a free, fair, and timely election.”

In addition to the Board’s normal remedies for these unfair labor practices, the Board will dismiss the petition and issue a Cemex order for the employer to bargain with the union without the necessity of the union winning an election.

This case was applied by the Board effective immediately. If you have questions about this powerful new standard or want to know more about how it affects your organizing, the experienced labor attorneys at Willig, Williams & Davidson are available to offer guidance to clients on this issue.