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Cemex Decision and the New Rules for Union Organizing

In our September Client Alert, we wrote about the extraordinarily pro-union NLRB decision in Cemex. Here are links to NLRB press release and the decision itself.

This decision revamps completely the process for a union to be recognized. The old procedure called for the union to demand recognition and the employer could tell the union “no”. It was the union’s burden to file an NLRB petition for an election which would decide whether or not the union had majority support. This is called an RC petition.

Now, under the Cemex decision, when the union demands recognition, they need not file an RC petition. The employer must file what is known as an RM petition. Moreover, the employer must do so promptly, and that is the word that was used by the Board in the Cemex decision. The text of the 121 page Cemex decision does not define promptly, however, footnote 139 says as follows:

Allowing for unforeseen circumstances that may be presented in a particular case, we will normally interpret “promptly” to require an employer to file its RM petition within 2 weeks of the union’s demand for recognition.

As you can see, footnote 139 is vague. What are “unforeseen circumstances”? what do they mean by “normally interpret”? Exactly when does the 2 week clock start to run?

If the employer misses this deadline, the NLRB, under the mandates of the Cemex decision, will issue an order to bargain with the union. This is a harsh provision, and it is our belief that many employers will not be aware of this and will rely on the old protocols requiring that the union file a petition if the employer says no to their demand for recognition. In other words, employers not aware of this will miss the deadline and they will then receive an order to bargain with the union without an election.

Our advice is that you should have access to a labor attorney who understands the new ground rules and is able to react quickly with a game plan. If you are not already a Wessels Sherman client, feel free to contact our firm to establish a relationship and to obtain 24/7 contact information for us. There is no cost associated with this. You can contact me directly by email.

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