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In the past, if a union demanded recognition based on majority status, i.e., a demonstration that majority of employees had signed union authorization cards, the employer could simply decline to recognize the union and require it to file a petition to hold a secret ballot election. If the union won the election and was certified as the bargaining representative, the employer was obligated to bargain with it on behalf of all employees in the bargaining unit.
In Cemex Construction Materials Pacific, LLC, the Board changed the way that employers must respond to union card checks. There, the Board held that when a union requests recognition on the basis that a majority of employees in the bargaining unit supported the union, the employer must either recognize and bargain with the union, or promptly file a representation petition. Under Cemex, the burden is on the employer to essentially challenge the union’s presumed majority status through the representation process. If the employer fails to do so timely (i.e., 14 days) the Board will certify the union without conducting an election. In other words, the employer may be obligated to bargain with the union even though no election was held, and it committed no unfair labor practices.
In Cemex, the unit of cement truck drivers and driver trainers voted against representation by the Teamsters Union. The margin was so small that a change of only seven votes in the union’s favor would have changed the outcome. The NLRB’s General Counsel and Union argued that the company had engaged in extensive unlawful and coercive conduct both before and during the election causing the Board to invalidate the election and require Cemex to recognize and bargain with the union.
The Board said it took into account the pervasiveness of the violations, the number of employees directly affected, the identity and position of the individuals committing the unfair labor practices and that the unfair labor practices were widely known among the employees. This case underscores that the employer must affirmatively request an election and the commission of unfair labor practices may invalidate an election that the employer won.
If you have any questions regarding union organizing, collective bargaining obligations, or any other employment issues, please contact Fraser Stryker’s Labor and Employment lawyers.
This article has been prepared for general information purposes and (1) does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. Always seek professional counsel prior to taking action.