Today, in perhaps the most significant change in federal labor law in more than 50 years, the National Labor Relations Board (“NLRB” or “Board”) announced a new framework that determines when employers are required to recognize and bargain with a union upon demand, without a representation election. 

In Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130, the NLRB adopted a modified version of the Joy Silk doctrine, a doctrine that dates back to the 1949 case, Joy Silk Mills, Inc., 85 NLRB 1263 (1949), but that the Board had abandoned in 1969.  Under the new Cemex framework, unions will be able to demand recognition and bargaining merely by demonstrating majority support (most often done through the presentation of signed authorization cards that are solicited without any NLRB oversight) within the proposed unit of employees.  Faced with this demand, employers have two choices:  either recognize and bargain with the union, or immediately file an election petition of its own with the NLRB.[1]  

The Board’s new Cemex standard provides that any unfair labor practice during the election period will result in the outright dismissal of the petition and an order requiring the employer to recognize and bargain with the union without an election.  Under the old standard now abandoned by the NLRB, which prioritized the employees’ right to vote in a secret ballot election supervised by the NLRB, only especially egregious unfair labor practices could result in a bargaining order.

The Cemex decision arguably marks one the most significant changes to the union election process in more than half a century.  The NLRB’s decision is certain to be challenged in the courts, but those appeals will take years to play out. In the meantime, observers expect unions to aggressively demand recognition from employers.  All employers, therefore, should examine their union-free and labor relations strategies to minimize their exposure to card signing campaigns.  Employers also should consider conducting training and workplace audits to identify areas of risk and be ready to respond quickly.  The Labor and Employment attorneys at Vedder Price are experienced in this type of preparation and assessment and would be glad to discuss individualized plans for employers.


[1] A previous version of this blog entry contained the traditional, very strict, requirements for an RM petition.  The Board in Cemex, however, seemed to indicate that these requirements will not apply in the situation where a union requests recognition of a new bargaining unit.

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Photo of Eugene A. Boyle Eugene A. Boyle

Eugene A. Boyle is a Shareholder at Vedder Price and a member of the firm’s Labor & Employment practice area in Chicago.

Mr. Boyle counsels and defends companies nationally in all facets of labor and employment law, regularly advising employers across many industries

Eugene A. Boyle is a Shareholder at Vedder Price and a member of the firm’s Labor & Employment practice area in Chicago.

Mr. Boyle counsels and defends companies nationally in all facets of labor and employment law, regularly advising employers across many industries on a broad spectrum of employment law issues.

Photo of Greg Ripple Greg Ripple

Greg Ripple is a Shareholder in Vedder Price’s Chicago office and a member of the firm’s Labor & Employment practice area.
Mr. Ripple’s practice focuses on a full spectrum of labor and employment issues ranging from daily consultation on statutory compliance to collective…

Greg Ripple is a Shareholder in Vedder Price’s Chicago office and a member of the firm’s Labor & Employment practice area.
Mr. Ripple’s practice focuses on a full spectrum of labor and employment issues ranging from daily consultation on statutory compliance to collective bargaining and traditional labor law issues.

Photo of Ken Sparks Ken Sparks

Kenneth F. Sparks is a Shareholder with over 25 years of experience in labor and employment matters.
He represents and advises private and public employers across a broad range of industries, with extensive experience working with health care organizations, in complicated labor law…

Kenneth F. Sparks is a Shareholder with over 25 years of experience in labor and employment matters.
He represents and advises private and public employers across a broad range of industries, with extensive experience working with health care organizations, in complicated labor law and litigation matters nationwide.

Photo of Candice T. Zee Candice T. Zee

Candice T. Zee is a Shareholder at Vedder Price and a member of the Labor & Employment practice area in the firm’s Los Angeles office.
Ms. Zee focuses her practice on traditional labor issues, including unfair labor practice charges, interpretation of collective bargaining…

Candice T. Zee is a Shareholder at Vedder Price and a member of the Labor & Employment practice area in the firm’s Los Angeles office.
Ms. Zee focuses her practice on traditional labor issues, including unfair labor practice charges, interpretation of collective bargaining agreements, grievances, arbitrations and National Labor Relations Board proceedings. She has handled several union grievances, arbitrations and representation cases at all stages and has extensive experience managing and overseeing union election campaigns.

Photo of Peyton Demith Peyton Demith

Peyton Demith is an Associate in Vedder Price’s Chicago office, and a member of the firm’s Labor & Employment group.

Mr. Demith focuses his practice on traditional labor law. He has experience in collective bargaining negotiations, grievance arbitrations, unfair labor practice charges, recognition

Peyton Demith is an Associate in Vedder Price’s Chicago office, and a member of the firm’s Labor & Employment group.

Mr. Demith focuses his practice on traditional labor law. He has experience in collective bargaining negotiations, grievance arbitrations, unfair labor practice charges, recognition petitions, and other administrative matters.

Photo of Hope Goldstein Hope Goldstein

Hope Goldstein is a Shareholder in Vedder Price’s Dallas and New York offices and a member of the firm’s Labor & Employment group.
Ms. Goldstein’s practice covers a wide range of issues concerning employers, and she provides both traditional labor law and employment…

Hope Goldstein is a Shareholder in Vedder Price’s Dallas and New York offices and a member of the firm’s Labor & Employment group.
Ms. Goldstein’s practice covers a wide range of issues concerning employers, and she provides both traditional labor law and employment law advice and litigation services. She has extensive experience representing clients in matters involving compliance with the National Labor Relations Act, labor negotiations and arbitrations, mergers and acquisitions, labor crisis management and long-term workforce strategies. More specifically, she negotiates, drafts and implements collective bargaining agreements, extension agreements and shutdown agreements. In addition, Ms. Goldstein’s employment law practice includes defending employers against discrimination, harassment, retaliation and the full range of statutory and common law employment claims.