Beware of union-organizing pitfalls

On October 14, 2024, the National Labor Relations Board (NLRB) announced that the number of union organizing petitions filed from October 1, 2023, to September 30, 2024, increased nearly 30% from the same period the year before and more than doubled from the same period in 2021.

Why have union certification petitions increased?

A significant factor driving the increase of union certification petitions is the NLRB’s August 2023 Cemex Construction Materials Pacific LLP decision. Cemex shifted the burden of proving claims of support from unions to employers.

Before Cemex, the burden was on unions to prove majority status by filing union authorization cards signed by employees with the NLRB and then winning a majority of votes in a secret ballot election. There was no employer obligation to recognize a union based on union authorization cards.

Under Cemex, if a union shows the employer proof that a majority of employees wish to be represented by the union, the employer is obligated to either: (1) recognize and bargain with the union; or (2) file a petition with the NLRB for a secret ballot election. Typically, unions will offer signed union authorization cards or a petition signed by employees as proof of majority status.