Under a typical election scenario, a union files an election petition with the Board’s Regional Office, along with a “showing of interest” demonstrating enough employee support (at least 30% of the unit described in the petition) to justify an election. The union also serves the petition on the employer, along with a description of Board procedures, informing parties of their rights and obligations in the process, and a “statement of position” form.

The union’s filing of a petition is often preceded by a union demand that the employer voluntarily agree to recognize the union as the collective bargaining agent for the employees in the bargaining unit, based on the union’s claim that it represents a majority of those employees. The union offers to share signed authorization cards it has obtained from employees in support of its claim.

Traditional advice in light of this scenario has been to reject the union’s claim of majority status and to not voluntarily recognize the union. The employer does not know how the union obtained the authorization cards from employees or what employees might have been told in exchange for their signature (e.g., “signing this only indicates you want an election” vs. “we will use your signed card as proof of your support”). The employer will often tell the union to file an election petition so that the employees may cast their ballot in a government supervised election free of coercion and undue influence. Even if an employee has signed a card, the employee is free to change their mind and vote their conscience in a secret ballot election. The filing of the election petition typically starts a campaign process where employers and unions compete for employee votes.

Many employers also simply ignored the union’s demand for recognition forcing the union to use the election process under the National Labor Relations Act.

Today, the Board issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election. Under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either (1) recognize and bargain with the union or (2) promptly file an RM (representation management) petition seeking an election. The employer cannot simply ignore the demand and cannot follow the traditional advice of telling the union to file its own election petition.

In addition, the stakes become higher for the employer who chooses the election route. If the employer who seeks an election commits any unfair labor practice (“ULP”) that would require setting aside the election, the petition will be dismissed. More importantly, rather than re-running the election, the Board will issue an order requiring the employer to recognize and bargain with the union.

This decision forces the employer to take action and will likely chill employer campaign activities designed to educate employees about the election process, the choice they are about to make, and the consequences of a vote in favor of union representation. The Board explained that the revised framework represents an effort to better effectuate employees’ right to bargain through their chosen representative while acknowledging that employers retain the option to invoke the statutory provision forcing the Board election. According to the Board, when employers pursue this option, the new process will make it less likely that an employer will commit ULP’s in the critical election campaign process between petition and election.

“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,” said Chairman Lauren McFerran. “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.”

The traditional approach of declining or ignoring requests for voluntary recognition will no longer be appropriate. While the employer may still force the election, the decision may also temper an aggressive campaign against the union because of the very real possibility that the Region will simply issue a remedial bargaining order in response to a successful union ULP charge.

We expect that this new framework will be challenged by an employer and will ultimately be tested and decided in the courts. Until then, keep this new framework in mind if you are presented with a demand for voluntary recognition, and be prepared to act in compliance with it.

If you have questions about how to respond to a demand for recognition or how to effectively manage an election campaign in light of this new decision, please reach out to the authors of this post or your Husch Blackwell labor and employment attorney.