The Board established broad new standards for foregoing an election and issuing a bargaining order requiring an employer to bargain with a union even if it hasn’t won an election.

In Cemex, the National Labor Relations Board (“the Board”) discarded half a century of precedent based on its decision in Linden Lumber and purported to return to a standard based on Joy Silk when deciding union election cases. In doing so, the Board drastically changed the rules for employers when presented with a recognition petition or authorization cards.

Old Standard
Under the previous standard, an employer presented with union authorization cards purporting to indicate union support from a majority of employees in a bargaining unit could only petition the Board for an election if it had a good faith doubt that either the employees did not actually want a union or that the bargaining unit suggested was an inappropriate one. If an employer committed unfair labor practice charges (“ULPs”) between the time an election was filed for and the time it was held, the Board would generally rerun the election so long as the unfair labor practices committed by the employer did not jeopardize the ability to conduct a fair election in the future.

New Standard
The Board discarded this standard in Cemex. Under its new standard, an employer presented with a union petition may test union support by asking for a prompt election. The employer does not need to have a good faith doubt that a majority of its employees want to be represented by a union – it may ask for an election regardless.

To meet the Cemex standard, the employer must ask for an election promptly (if the union has not already done so). Significant delay in doing so after being presented with purported proof of majority support may result in the employer losing the right to insist on an election.

Most crucially – almost any ULPs committed by the employer or its agents between the time an election was filed for and the time it was held can result in the Board setting aside election results and issuing a bargaining order requiring the employer to bargain with the union. Approvingly quoting its past decisions, the Board stated that ULPs committed in the critical period between the filing of an election petition and the holding of an election will be viewed as justifying a bargaining order unless they are “so minimal or isolated that it is virtually impossible to conclude that the misconduct could have affected the election results.” Cemex at 26, Fn. 142.

One final change in election procedures came from a prior case. The Board has returned to an Obama-era standard for election timing. Whereas under the Trump administration, it was not uncommon for six weeks to elapse between the filing of an election petition and an NLRB election being conducted, moving forward, the Board will seek to shorten that timeframe to a period of 25-26 days.

Employer Takeaways
The Cemex decision has resulted in greater clarity and greater consequences for employers. On the one hand, employers are now permitted to file for an election to test union majority support every time they are presented with a petition from their employees, and the shorter time period between an election being filed for and conducted means that there is less time during which an errant ULP can result in being forced to bargain with a union which was unable to win a representation election.

On the other hand, the consequences for an employer making a mistake or taking too long to decide how to respond to a union representation petition have increased drastically. While employers found that the faster elections held under the Obama-era Board still allowed them enough time to convey their position on unionization to their employees, it did so in a context where an employer who was presented with a representation petition had time to consult counsel and decide how it wanted to respond and come up with a plan to do so.

The Board’s decision in Cemex underscores the importance of employers having a proactive labor policy in place even before the prospect of their workforce wanting to unionize comes into view. An employer presented with a petition should already know how it wants to react – waiting weeks to do so can result in a waiver of its right to insist on an election.

No less important is great training for supervisory and managerial personnel. After Cemex, the consequences of just one inadequately-trained supervisor committing ULPs without the employer’s knowledge can be drastic and result in the Board ordering negotiations with the union even if the union was unable to win its election! Because elections must be filed for promptly and conducted quickly, employers are unlikely to have time to adequately train their supervisors and managers if they wait to do so until they have already been presented with a representation petition.

Employers who have questions about this new standard or would like help preparing their workforce to comply with the challenges it presents should feel free to reach out to one of Bullard’s specialist employer-side labor attorneys, such as Ric Alli, Dennis Westlind, Jess Osborne, or John Stellwagen.


The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.