Saturday, August 26, 2023

BREAKING NEWS: NLRB issues in the era of card-check union recognition and bargaining order remedies

In Cemex Construction Materials Pacific, the NLRB significantly altered the process for how a labor union becomes certified as the exclusive bargaining representative of a group of employees.
Cemex eliminates (1) secret-ballot representation elections upon the presentation of signed authorization cards; and (2) re-run elections in the face of election-campaign unfair labor practices.

In their place, Cemex: (1) requires an employer to recognize and bargain with a union upon its presentation of a majority of signed authorization cards unless the employer promptly (within two weeks absent unforeseen circumstances) files an RM petition seeking an election; and (2) authorizes the Board to issue a bargaining order instead of directing a second, re-run election if an employer seeking an RM election commits any unfair labor practice prior to election that would require the Board to set the election aside.

Prior to Cemex, upon the collection of enough authorization cards, a labor union would file an RC Petition seeking an election. Now, however, it's the employer who seeks the election by filing an RM Petition, which tests whether a labor union still enjoys the support of a majority of bargaining unit members.

Thus, the burden has changed. Pre-Cemex, there was no presumption of majority support for a labor union unless and until it won a representation election. Post-Cemex, majority support is presumed and an employer can only challenge it via an election if it has a reasonable, good faith basis to do so.

Moreover, the Board has prioritized laboratory conditions during union organizing more than ever before by authorizing bargaining orders over re-do elections.

One thing Cemex, hasn't changed, however, is the best defense an employer has to union organizing — being a good employer; treating your employees with respect and with decency; paying a fair wage; providing employees a voice within your business. Be an employer of choice for employees and not one of opportunity for unions. If you dedicate yourself to doing that one thing and doing it really, really well, you shouldn't have to worry about Cemex, authorization cards, RM petitions, bargaining orders, or anything else union related.