The NLRB has re-written the rules for union organizing with many trip wires for employers.

We have been alerting our clients about the extraordinarily pro-union NLRB decision in Cemex.

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.

Perhaps even more concerning is the new authority of the Board to bypass the results of the election if in their judgment the employer has committed unfair labor practices. The Board has the authority to issue a bargaining order rather than a re-run 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. Wessels Sherman has a newly developed protocol for handling demands for recognition which give the client the maximum likelihood for winning and the minimum likelihood for unfair labor practice challenges.

Questions? Call Richard Wessels in our St. Charles office at (630) 377-1554 or by email