NLRB Cemex Decision and Quick Election Rule: New Standard Expediting Unionization, Heightened Employer ULP Risk

Description

The NLRB's recent decision in Cemex Construction Materials Pacific L.L.C. (2023) overturned 50 years of precedent and essentially re-wrote the process by which private sector employees can unionize. The new standard requires employers to voluntarily recognize unions or promptly initiate election proceedings. Under the new Cemex standard, when a union claims majority support and demands recognition, an employer has three potentially perilous options: (1) recognize the union and begin bargaining without testing whether the union actually has majority support; (2) file an RM petition within two weeks of the union's demand to determine union support; or (3) take no action and defend against a refusal to bargain unfair labor practice (ULP) charge.

The NLRB General Counsel's follow-up guidance memo to Cemex states that "employers act at their own peril in refusing to recognize and bargain" and that the NLRB will seek bargaining orders under the new Cemex doctrine if employers fail to recognize a union or commit even one ULP in the run-up to an election. The new standard will be applied retroactively.

Additionally, the NLRB recently released the 2023 Election Rule (a.k.a. the "quickie" election rule), effective Dec. 26, 2023, that governs representation-case procedures. The new rule shortens the time period between union petitions and elections, thereby limiting the employer's ability to respond to a union-organizing campaign and expediting the unionization process.

Listen as our expert panel provides an in-depth look at the Cemex opinion and 2023 Election Rule and their impact on employers. The panel will examine notable post-Cemex decisions. The panel will also provide practitioners with best practices for helping employers prepare for accelerated union activity and mitigating the risk of committing a ULP.