At a Glance
- The National Labor Relations Board announced dramatic changes to the way employers become unionized on August 25, 2023.
- Now, if an employer ignores a union’s demand for voluntary recognition, and a majority of the employees signed cards designating a union as their representative, the employer will be unionized without an election.
- When there is an election, if the employer commits unfair labor practices that invalidate it, the employer will also be automatically unionized.
- Please join us for a webinar on September 14, 2023 on this critical update from the NLRB. Click here for more information.
What does it mean if a union makes a “demand for recognition,” or “request for voluntary recognition” to an employer? What does a union mean when it says it has a “showing of interest” or “proof of majority support” or “majority status,” or that it has been “designated as Section 9(a) representative by the majority of employees in an appropriate unit”?
These magic words are now of critical importance to employers and their employees due to a dramatic change the National Labor Relations Board (NLRB) announced on August 25, 2023, in how it interprets the National Labor Relations Act (NLRA).
Demand for Recognition
Unions often request or demand that a nonunion employer voluntarily recognize a union as the representative of its employees. In other words, the union is asking that the employer unionize without first holding an NLRB election to determine whether a majority of the employees want that union to represent them. Until now, the employer was free to decline to voluntarily recognize the union, and the union could then file a “petition” at the NLRB to obtain a vote of the employees. If the union won the election, the employer was then forced to recognize the union.
But in the NLRB’s August 25, 2023, decision Cemex Construction Materials Pacific, LLC, 372 NLRB No. 113, the NLRB announced a new framework for these kinds of “union representation proceedings.” Now, if a union requests or demands that an employer recognize it as the representative of its employees, and that union has proof that a majority of those employees have designated the union as their representative (a relationship described in Section 9(a) of the NLRA, so it sometimes called a 9(a) representative), the employer can no longer decline the request and simply wait to see if the union proceeds by filing an NLRB petition. According to the NLRB’s Cemex decision, that is now unlawful. Under Cemex, the employer has two options: (1) recognize the union or (2) promptly file its own NLRB petition (called an RM petition). Promptly will normally mean within two weeks. We anticipate that many employers will not realize that they must initiate this process on short notice and will become unionized without ever having an NLRB election.
The employer’s RM petition is designed to hold an election to test whether the union actually has the support of a majority of the employees, and the employer can also use it to challenge whether the union has correctly drawn the circle around a “bargaining unit” of employees it can represent. But due to a second change from the Cemex decision, the results of an election are now less likely to count, in the end. Now, if the employer commits even just one violation of the NLRA during the “critical period” leading up to the election, and if that violation is enough to set aside the election, the employees will lose their chance to make the decision whether to unionize via a vote. In the past, NLRB violations could set aside the results of an election, but the NLRB would almost always re-run the election to confirm the employees actually wanted union representation. Now, the NLRB will simply order union representation without re-running the election, relying only on the union’s original proof that a majority of the employees designated the union as their representative (which is called a “showing of interest” and typically consists of union “cards” signed by employees).
We highly recommend that all employers who receive an initial communication from a union regarding representation, of any kind, immediately reach out to counsel for advice about how best to respond.