In major new decision, NLRB authorizes union recognition without election

On August 25, the National Labor Relations Board (the Board) issued a monumental decision in Cemex Construction Materials Pacific, LLC, enacting a new framework for unions to gain recognition without a formal representation election.

The details

Under the Cemex ruling, an employer must either recognize and bargain with a union claiming majority support or promptly file a petition seeking an election challenging (1) whether the union has majority status and (2) whether the alleged majority is an appropriate bargaining unit.

Failing to promptly file a petition, when the union hasn’t itself filed a petition for an election will result in an unfair labor practice charge against the subject employer. Likewise, if the employer commits any unfair labor practice after the union’s request for recognition, the Board will now dismiss the petition for election filed by the employer and order the employer to bargain with the union.

Prior to this 3-1 decision, absent circumstances which support a finding of serious unfair labor practices by the employer, even if an employer was found to have committed a less significant unfair labor practice leading up to an election, a second election would take place. Now, a finding of an unfair labor practice will result in an order from the Board for automatic recognition of the union and the requirement to bargain with that union.