Here's what labor lawyers (from both sides of the table*) are saying about the Cemex decision
On August 25th, the National Labor Relations Board (NLRB) issued a 121-page decision in Cemex Construction Materials Pacific, LLC that significantly alters the manner in which employees are unionized.
Since that time, many law firms—mostly employer-side and very few union-side law firms—have released articles on the topic. Here is a round up of articles from some of the most well known labor law firms around the U.S.:
Employer-side law firms:
[In alphabetical order]
Barnes & Thornburg: NLRB Dramatically Resets The Union Election Process With Traps For The Unwary
“Combined with the recent ‘quickie’ election regulations reinstated by the NLRB, the union representation process will now happen on an accelerated time schedule as was done during the Obama years. Most importantly, the Cemex decision also contains potential land mines for employers that lack significant human resources, employee relations and legal support that may result in small employers having unions foisted on them by the NLRB.” Read more…
“Under the decision, when a union tells the employer that a majority of employees in an appropriate bargaining unit have designated the union as their representative and requests recognition on that basis, the employer must either (1) recognize and bargain with the union, or (2) file a petition for an election with the NLRB within 14 days of the demand. But it will be easy for the union to block the second option.” Read more…
“The NLRB goes to great lengths to justify its reversal of a tried-and-true method for establishing legal representative status by maintaining that it does not unreasonably infringe on employee rights to oppose union representation, or to make fully informed decisions. However, this decision needs to be viewed against the backdrop of other NLRB actions to understand its full impact.” Read more…
“The new framework will be applied retroactively. Because the maintenance of a rule that is later deemed unlawful, or an errant remark from a supervisor, could result in the dismissal of the employer’s request for an election and the issuance of an order to bargain with the union, management training is more critical now than ever.” Read more…
Littler: NLRB’s Cemex Decision - Not Exactly Card Check, but Awfully Close
“In Cemex, the Board laid out its new standard for recognizing a union when the union presents a majority of signed cards to the employer. The Board explicitly overruled Linden Lumber, which abandoned the Joy Silk doctrine, permitted employers to reject authorization cards as proof of majority support and required the union to file an election petition. Linden Lumber, affirmed by the Supreme Court, has been the standard for 52 years.” Read more…
“These changes radically shift the legal landscape for companies addressing demands for recognition and organizing campaigns and require significant, proactive approaches now to address the new reality for how unions will organize and win certifications going forward.” Read more…
“Essentially, the new Cemex framework absolves unions of the burden of seeking and conducting an election to certify themselves as the bargaining representative. Instead, it puts the onus on the employer in having to choose to either commence bargaining – without an election – or petition the NLRB for an election. Importantly, any unfair labor practice committed by an employer in the run-up to an election now results in immediate issuance of a bargaining order as opposed to a rerun election, which is the typical remedy (until now that is).” Read more…
Ogletree Deakins: NLRB Adopts New Union-Friendly Recognition Standard
“The ruling, combined with the resuscitation of the Board’s 2014 “ambush election” rules, will make it more difficult for employers to respond to demands for recognition from unions claiming to have majority support from the employees at issue.” Read more…
“Employers must now act quickly when faced with a request from a union for voluntary recognition, because the Board also noted in its decision that if the employer neither recognizes the union nor promptly files a petition, the union may file a failure to bargain unfair labor practice charge against the employer.” Read more…
Reed Smith: The NLRB announces new framework for union representation proceedings in Cemex decision
“The impact of Cemex is expected to be profound. Unionization efforts are reported to be at peak levels compared to recent decades. Employers should fully expect that trend to continue following Cemex and should be fully prepared in terms of responding to a union’s request for recognition based on majority support, and in terms of mitigating the risk of unfair labor practices during the critical period between the filing of an RM petition and the representation election.” Read more…
“The decision also clarifies that a bargaining order is not “the first and only option” when an employer commits an unfair labor practice during the critical period prior to an election. Instead, the applicable standard requires consideration of all relevant factors, including the number of violations, their severity, the extent of dissemination, the size of the unit, the closeness of the election (if one is held), the proximity of the misconduct to the election date, and the number of unit employees affected.” Read more…
Stevens & Lee: Historic NLRB Decision Changes When Employers Must Recognize and Bargain with Unions
“While the Cemex decision is likely to be appealed, these changes will have a profound effect on non-union employers who may have little to no experience in labor law. It is important that employers learn how this process works and what to do if confronted by a unionization drive.” Read more…
Union-side law firm(s):
“These major changes promise to substantially tip scales toward workers and unions by helping to fix an issue that organizers know far too well: ‘representation delayed is representation denied.’” Read more…
Editor’s note: * This is, by no means, a comprehensive array of articles.
** - Additionally, while there are many union-side law firms across the U.S., very few have written posts about the Cemex decision. Below is what was found.
If you know of a union-side law firm’s post or article on the Cemex decision, or other articles from attorneys that should be included, please leave a comment below and leave the link and we will update this post, as appropriate.
