August 25, 2023

The National Labor Relations Board (NLRB) issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election. The new framework both emphasizes employees’ rights to bargain through representatives of their own choosing and improves the fairness and integrity of NLRB-conducted elections.

Under the new framework, when a union requests recognition on the basis that a majority of employees in a bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file a petition for election. However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and the NLRB will order the employer to recognize and bargain with the union. In Cemex, the NLRB found that the employer 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. The new Cemex standard differs from the historical Joy Silk standard, which required an employer to bargain with a union unless it had a good-faith doubt of the union’s majority status.

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