National Labor Relations Board Announces New Requirements For Union Representation Cases

• Published date: 06 September 2023
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Law Firm: Perkins Coie LLP
• Author: Richard Hankins and Michael Alexander Pratt

The U.S. National Labor Relations Board (the Board) issued a decision in Cemex Construction Materials Pacific, LLC on August 25, 2023, upending decades of precedent regarding the representation election process.¹ Per the decision, "an employer violates Section 8(a)(5) and (1) [of the National Labor Relations Act (the Act)] by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by a majority of employees in an appropriate unit unless the employer promptly files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union's majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A)."

Under the Board's new standard, an employer "confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union's majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by the union." However, "if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order." The analysis of whether a bargaining order is warranted does not turn "on speculation about the impact of an employer's conduct on an election held at some future date, but rather on whether the employer has rendered a current election (normally the preferred method for ascertaining employees' representational preferences) less reliable than a current alternative nonelection showing."

By implementing this new process, the Board discarded its practice of allowing employers to insist on a Board-conducted election as a precondition to an enforceable statutory bargaining obligation. It also explicitly overruled its Linden Lumber decision, which held that an employer does not violate Section 8(a)(5) "solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election."² The Board did not, however, reinstate the Joy Silk doctrine, under which an...