NLRB Modifies Standard for Unions Seeking Exclusive Representation Status

In a groundbreaking decision issued in August, the National Labor Relations Board (NLRB) adopted a new standard for how employers must respond to union demands for recognition. The decision, Cemex Construction Materials Pacific, LLC v. International Brotherhood of Teamsters, states that an employer violates the National Labor Relations Act if they refuse to recognize a union chosen by a majority of employees in the unit — unless the employer “promptly” seeks an election. If the employer requests an election and commits any unfair labor practice, the NLRB will order the employer to bargain with the union rather than order a new election.

Once a union makes a demand for recognition and shows majority support (such as validly signed representation cards), the employer is presented with two choices: recognize the union or ensure a free and fair election. If the employer fails to do one or the other, the NLRB may require the employer to recognize the union and start bargaining for a union contract.

As the NLRB makes clear in its opinion, this standard is consistent with the intentions of the National Labor Relations Act, which include the encouragement of collective bargaining — that it is a fundamental right of workers to determine union support without interference from their employer — and that the procedures of the National Labor Relations Act are intended to ensure fair dealings between unions and employers, and are not meant to delay union organizing.

“This decision should boost organizing efforts across the country,” explained President Driscoll. 

“It will hopefully dissuade employers from committing unfair labor practices prior to an election, due to concern they will be forced by the NLRB to recognize the union. Most importantly, this also means that employers can no longer simply refuse to recognize the union, or create ridiculous hurdles to the union’s formal recognition, without consequences.”