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NLRB: Unions can represent workers without an election

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The National Labor Relations Board issued a decision Friday that provides a new framework for determining when employers need to bargain with unions without a representation election.

In the decision, Cemex Construction Materials Pacific, LLC, NLRB held that when a union requests recognition from an employer because a majority of workers have identified the union as their representative, the employer must either recognize and bargain with the union or “promptly” file a petition for an election.

However, if the employer commits an unfair labor practice that would delay the election, the petition will be dismissed and the employer will have to recognize and bargain with the union, the board said.

The new Cemex standard revives part of the historic 1949 Joy Silk standard, which called for employers to bargain with a union unless it had a good-faith doubt that the union represented the majority of workers in the unit. Cemex doesn’t fully restore Joy Silk, but it does overrule a precedent established in the board’s 1971 Linden Lumber decision.  

In a statement, NLRB said the new standard would promote fair elections by “more effectively disincentivizing employers from committing unfair labor practices.” 

“The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment. Under Cemex, an employer is free to use the board’s election procedure, but is never free to abuse it—it’s as simple as that,” NLRB Chairman Lauren McFerran said in the statement.

In Cemex, NLRB found that the employer committed more than 20 cases of objectionable or unlawful misconduct in the period between the filing of an election petition and the election.

The National Right to Work Foundation criticized Cemex, claiming the decision “coerces employers to hand their workers over to union control” after “card check” drives. 

“With the Cemex decision, the Biden NLRB has plumbed new lows by shamefully but unsurprisingly tossing out workers’ individual rights and granting Big Labor a blank check to force workers under its so-called ‘representation,’” National Right to Work Foundation President Mark Mix said in a statement. “By substituting union boss claims of support via ‘card check’ over secret ballot elections, winning workers’ voluntary support in an election will no longer pose an obstacle to union bosses bent on expanding their power and forced-dues revenue by any means necessary.” 

Members of the board voted 3-1 along party lines in deciding whether to overrule Linden Lumber, with lone Republican appointee Marvin Kaplan concurring and dissenting in part with the majority.

“Today’s decision, along with the board’s recently issued Final Rule on Representation, will strengthen the board’s ability to provide workers across the country with a timely and fair process for seeking union representation,” McFerran said.

The new final rule, issued Thursday, reverses Trump-era amendments and is designed to cut down the time it takes to proceed from petition to election and to reach a resolution in post-election litigation, NLRB said.

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