The feds are trying to make unionizing your workplace easier than draining a two-foot putt.


On Friday, the National Labor Relations Board issued a decision in Cemex Construction Materials Pacific, LLC that it claims in this press release will “effectuate employees’ right to bargain through representatives of their choosing and improve the fairness and integrity of Board-conducted elections.”

That’s one way of putting it.

Until last week, there were two primary ways for your employees to form a union:

  1. If at least 30% of your workers in a bargaining unit sign cards or a petition saying they want a union, the NLRB conducts a secret ballot election. If most of those who vote choose the union, the NLRB will certify the union as the representative for collective bargaining.
  2. If at least 50% of your workers sign cards or a petition, the employer may voluntarily recognize a union.

But last week’s decision in Cemex Construction makes it much easier for employees to unionize if, pre-election, at least half sign union cards or a petition.

Suppose most employees in an appropriate bargaining unit have designated the union as their representative. In that case, an employer must either recognize and bargain with the union immediately or promptly file an RM petition seeking an election (generally within two weeks of the union’s demand for recognition).

If the employer opts for the election process, it cannot commit any unfair labor practice requiring setting aside the election. Otherwise, the Board will dismiss the RM petition, and—rather than re-run the election—it will order the employer to recognize and bargain with the union.

Doing nothing probably won’t end well for you, either. It’s all summarized in this Board flowchart. Two former Board members also summarized the changes here.

If there’s any silver lining here for employers — you may have to squint — it’s that the Board did not reinstate the Joy Silk Doctrine, which would have required employers to recognize and bargain with a union when presented with evidence of a card majority unless the employer has a good faith doubt as to majority status.

As with most pendulum-shifting Board decisions like Cemex Construction, a future Board with a more employer-friendly majority may reverse it later. But that won’t happen soon. Until then, the best defense is to be a good employer and ensure that your workers have no reason to want a union to represent them in the first place.

“Doing What’s Right – Not Just What’s Legal”
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