On review by the NLRB, the Board affirmed the ALJ’s rulings and imposed its recommended remedies, with one major change: the NLRB issued a remedial affirmative bargaining order. In so doing, the NLRB effectively ruled that, by committing unfair labor practices in the course of the election, the employer had so polluted the representation process that the union should automatically be found to have attained a majority of votes. The NLRB’s decision emphasized the impact that violations of Section 8(a)(1) have during the “critical period” after a representation petition has been filed. The NLRB usually sets aside the results of a representation election where an unfair labor practice occurred during the critical period unless the results of the election could not have been affected by the violation. However, the NLRB deviated from that norm and set out a new framework in Cemex.
The updated election framework under Cemex provides that when a union requests recognition based on majority employee support, the employer must either recognize the union and begin bargaining or immediately file an RM petition seeking an election to verify the union’s status as bargaining representative. If the employer opts to file an RM petition and is subsequently found to have committed an unfair labor practice that would require setting aside the election under existing standards, the NLRB will dismiss the employer’s petition and order that the union be recognized as the sole bargaining representative of the petitioned-for unit.
While seemingly straightforward in application, the NLRB’s decision in Cemex left many questions. On November 2, 2023, the NLRB’s General Counsel issued guidance in Memorandum GC 24-01 to explain its interpretation of the decision. Importantly, readers should note that the General Counsel’s guidance does not carry the weight of law; rather, it is meaningful insofar as it helps the public understand how the agency will treat precedent, and oftentimes sets out the rationales that the General Counsel will attempt to convince the NLRB to adopt. With that in mind, there are several key insights from the General Counsel’s memorandum.
What qualifies as a demand for recognition that will trigger the Cemex framework? In the General Counsel’s opinion, an informal, oral demand for recognition made to anyone acting as an agent of the employer will satisfy the requirement and trigger an employer’s obligation to either recognize the unit or file an RM petition. If a demand is made to a manager excluded from the NLRA’s definition of “employee,” regardless of the manager’s involvement in or understanding of labor relations, then it will effectively trigger Cemex under the General Counsel’s interpretation.
How long does an employer have after receiving a demand to file an RM petition? According to the General Counsel’s memorandum, employers will have two weeks following a demand to either recognize the union or file an RM petition. If an employer fails to do so timely, then a union request to the NLRB for a bargaining order will likely be granted.
What types of unfair labor practices require setting aside an election? Per the General Counsel’s memorandum, there need only be one violation of the NLRA to warrant a bargaining order. A violation of Section 8(a)(1) or Section 8(a)(3) may be sufficient to meet the standard laid out in Cemex that an election be set aside if the misconduct could have affected the election results. In determining whether a bargaining order is appropriate, the NLRB will consider all factors it deems relevant.
Regardless of whether one views Cemex as a bad case that made bad law or a case that rightly imposes harsh repercussions for election misconduct as a deterrent, it is now the law. Management, labor unions and employees should learn the intricacies of this new framework in order to protect their rights under the NLRA. From training on what constitutes a demand triggering Cemex to robust education on what employers can and cannot do during an election, understanding labor law has never been more important for organizations and their employees. While the post-Cemex world looks frightful to some, we can rest assured that additional decisions from the NLRB and appellate courts will help elucidate the standards that will govern union representation.
