Guidance Memo Shows Plan for NLRB Action Favoring Union Recognition

Author: Robert S. Teachout, XpertHR Legal Editor

November 14, 2023

Employers that are confronted with a union demand for recognition should expect a process weighted much more in favor of unions in the wake of the National Labor Relations Board's (NLRB's) Cemex decision, according to a new guidance memo issued by NLRB General Counsel Jennifer Abruzzo.

The ruling in Cemex Construction Materials Pacific made sweeping changes to the process for recognizing union representation, making it easier for unions to win recognition as employees' bargaining representatives. Prior to Cemex, after presenting signed union authorization cards, a union also would file for an NLRB election to prove their majority employee support if the employer did not give voluntary recognition. Employers also could file for an election, but the burden to do so typically fell to the union.

In Cemex, the Board shifted the burden to employers to either voluntarily recognize the union or file a union election petition, with an additional requirement that employers do so promptly - within two weeks - or face a bargaining order (a Cemex order). Furthermore, if an employer commits any unfair labor practice during the election process, the Board will issue an order to bargain with the union.

In response to questions about unresolved issues, Abruzzo issued a guidance memorandum to NLRB regional directors and officers clarifying how the NLRB will apply the new standard. Key points of which employers need to be aware include:

• The Cemex standard will apply retroactively and at any point to a case, and without regard to an employer's legitimate reliance on the previous standard.
• The Board will focus on an employer's conduct prior to the filing of an election petition and in the run-up to the election, and aggressively issue Cemex bargaining orders based on that conduct. However, though Cemex orders will now be the more-often used remedy, the Board may still issue a Gissel bargaining order (issued when the work atmosphere has been so tainted by an employer's unfair labor practices that a fair rerun election is unlikely) when appropriate.
• Although an employer may request evidence of a union's majority employee support, the union is not obligated to provide it. Instead, a third party may be appointed to review the evidence or conduct a card-check process. However, the two-week period for the employer to file an election petition will not be tolled during such a process.
• The demand for union recognition may be made to any agent of the employer. This greatly expands the list of individuals to whom a union can make a written or verbal recognition demand, as every manager is an agent of an employer as defined by the National Labor Relations Act and prior Board rulings. In a footnote, Abruzzo cited a prior Board ruling that identified a warehouse manager as an agent of the employer despite the manager's protest that he lacked authority from the company to recognize the union.

Employers need to be aware of these changes and prepare to act quickly in the event they are presented with authorization cards by a union and a demand for recognition. The NLRB has published information and resources on the Cemex representation framework on its website.