Nonunion employers should be watchful of the new standard approved last Friday by the National Labor Relations Board (“NLRB”), which facilitates the process of requiring employers to bargain with unions without holding formal elections. This ruling may restart the union representation drives as it facilitates the representation process, change the burden to the employers to test the union’s majority support, and improve the union chances to win representation.

The NLRB’s 3-1 decision in the case Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters, 372 NLRB No. 130 (August 2023), establishes a new rule that allows unions to represent employees without holding formal secret ballot elections, when a majority of the employees sign cards in support of the union. Under this new standard, an employer may be considered to violate Section 8(a)(5) (bath faith bargaining) and (1) (interfering with employee rights) of the National Labor Relations Act (“NLRA”) by refusing to recognize, upon request, a union that has the majority of employees in an appropriate unit.

The NLRB held that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union and without committing an 8(a)(5) and (1) violation, “promptly” file a Representation Matters Petition (“RM”) to test the union’s majority support or challenge the appropriate unit composition or may await the processing of a petition previously filed by the union. RM is a type of petition that an employer can file with the NLRB to conduct a secret ballot election to determine whether a representative will represent, or continue to represent, a unit of employees. With this process an employer may test the union’s majority through a representation election if the NLRB, upon an investigation and hearing, finds that a question of representation exists.

In a footnote, the NLRB indicates that they interpret “promptly” to require an employer to file its RM petition within 2 weeks of the union’s demand for recognition.

If the employer neither recognizes the union nor “promptly” files a petition, the union may file an unfair labor charge for bad faith bargaining against the employer. Additionally, if majority support in an appropriate unit is proven, the NLRB could find that the employer violated the NLRA by failing and refusing to recognize and bargain with the union as employees designated collective-bargaining representative and issue a remedial bargaining order. That means that the employer may be obliged to bargain with the union without holding a secret ballot election.

We should be observant on how the new ruling will be treated by US courts during a potential judicial review process. If it is challenged in court, there is a possibility that the US Court of Appeals or even the US Supreme Court reduces the foreseeable impact or revokes this new standard. At O’Neill & Borges we will continue monitoring the development of this case. We are available to assist you with any questions you may have regarding this new standard.