The significant rise in union organizing petitions filed with the National Labor Relations Board (NLRB) between October 2023 and September 2024, which increased nearly 30% compared to the previous year and more than doubled from 2021, poses new challenges for employers. This spike has been attributed to the NLRB’s August 2023 decision in the Cemex Construction Materials Pacific LLP case, which shifted the burden of proving employee support for unionization from unions to employers. Employers are now required to either recognize the union or petition for a secret ballot election if presented with evidence of majority support. This legal landscape necessitates a deeper understanding for employers to avoid potentially costly pitfalls.
Before the Cemex ruling, the process of unionization required unions to demonstrate majority support through signed union authorization cards and win a subsequent secret ballot election. Employers were under no obligation to recognize unions based solely on these signed cards. However, post-Cemex, the dynamics changed dramatically. If an employer fails to either recognize the union or file for an election within two weeks after the union’s demand for recognition, the NLRB presumes that the union represents the employees and will mandate that the employer negotiate with the union. This shift has prompted a substantial increase in employer-filed election petitions, highlighting a broader trend toward rising union activity.
Employers now face a markedly different labor relations environment where unions are incentivized to present possibly insufficient proof of majority support in hopes of inducing employer inaction. Such inaction would result in automatic recognition by NLRB order. Consequently, it is critical for employers to grasp the implications of the Cemex ruling and adopt a proactive approach. Do not disregard any presented evidence of majority support, regardless of its legitimacy. Instead, employers should promptly file a petition with the NLRB to preempt involuntary union recognition, maintaining better control over the unionization process.
Proactive Measures: Strategic Responses to Unionization Efforts
The 30% rise in union organizing petitions filed with the National Labor Relations Board (NLRB) between October 2023 and September 2024, which more than doubled compared to 2021, presents new challenges for employers. This surge is linked to the NLRB’s August 2023 decision in the Cemex Construction Materials Pacific LLP case, shifting the burden of proving employee support for unionization from unions to employers. Employers now must either recognize the union or petition for a secret ballot election if evidence of majority support is provided. This requires a deeper understanding to avoid costly mistakes.
Before Cemex, unions needed to show majority support with signed authorization cards and win a secret ballot election. Employers were not obliged to recognize unions just based on these cards. Post-Cemex, employers must recognize the union or file for an election within two weeks of a union’s recognition demand, or the NLRB assumes the union represents the employees and mandates negotiation. This change has led to more employer-filed election petitions, reflecting increased union activity.
Employers now operate in a different labor environment, where unions may present insufficient proof of majority support, hoping for employer inaction. Employers must understand the Cemex ruling’s implications and act quickly by filing a petition with the NLRB to avoid automatic union recognition, maintaining control over the unionization process.
