In its Cemex Construction Materials ruling issued August 25, the National Labor Relations Board (NLRB) paved the way for unions to represent employee units without winning a secret ballot election outside the 8(f) exemption, effectively placing the burden on employers to disprove a union’s claim of 9(a) representative status. A day earlier, the NLRB issued new election rules (effective December 23, 2023) that speed up the election process and effectively bar employers from litigating key election issues until after a vote. (For info on the differences between 9(a) and 8(f) union recognition, see here and here.)
Cemex in particular represents a major shift from decades of settled law. For nearly 60 years preceding Cemex, an employer had no obligation to recognize a union based on a “card check.” Generally, absent employer consent, a union had to request and win a secret-ballot election in order to gain representative status.
Under the new decision, once a union shows the employer proof – typically in the form of signed union cards – that a majority of employees within a specified “bargaining unit” wish to be represented by the union, the employer must either recognize and bargain with the union or the employer must request a secret ballot election to challenge the union’s claim of majority status.
If the employer fails to request an election in a timely fashion (two weeks absent unique circumstances), the union enjoys a presumption that it represents the employees, and the employer is obligated to recognize and begin bargaining with the union.
Additionally, and perhaps most significantly, if the employer is found to have committed any unfair labor practice charges leading up to or during the pendency of the election, the employer’s election petition may be dismissed and the employer ordered to bargain with the union without the union having to win an election.
Coupled with the new election rules, which represent a return to Obama-era “quickie” election procedures, Cemex puts unions in the driver’s seat when it comes to organizing workplaces outside the construction 8(f) context. Unless and until the decision is successfully appealed, or overturned in a new case, employers should ensure that their managers and supervisors are well-trained regarding compliance with National Labor Relations Act (a best practice under any circumstances) and are prepared to act quickly when presented with a union claim for recognition and claim of majority status. AGC recommends seeking the advice of qualified labor counsel (such as the authors of this article or other appropriate member of the AGC Labor and Employment Law Council) when facing such claims.
Editor’s Note: This article was written by Manolis Boulukos and Paul Bittner of the law firm Ice Miller LLP and is published by AGC with permission. This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
Contractor Type
Industry Priorities