On November 2, 2023, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo provided guidance to inquiries received by the NLRB in the wake of the Board’s decision in Cemex Construction Materials Pacific, LLC (which we wrote about here). In summary, the Board’s decision in Cemex established a new standard for the steps to be taken by an employer that receives a union’s demand for recognition, and the consequences facing an employer that violates the National Labor Relations Act (NLRA) after receiving a demand for recognition – specifically, the likelihood that the Board will order the employer to bargain with the union, even if the employer did not extend voluntary recognition to the union and the union did not prevail in a NLRB-administered election.
Following Cemex, employers that receive a demand for recognition have 14 days to choose one of the following options: (1) extend recognition to the union in the bargaining unit sought by the union if the union has majority support of the unit employees, or (2) file an RM petition with the NLRB if the employer wishes to test the union’s majority support and/or if the employer believes the unit sought by the union is not an appropriate unit under Board law. The GC’s memo indicates that if a union-filed petition has been filed prior to the expiration of the 14-day period, the employer may await the processing of that petition and, therefore, would no longer be obligated to file the RM petition. If the employer does nothing in response to the demand, the NLRB will issue an order requiring the employer to recognize and bargain with the union.
Here are several key takeaways from GC Memo 24-01 (“Guidance in Response to Inquiries About the Board’s Decision in Cemex Construction Materials Pacific, LLC”):
- Demands for Recognition May Be Oral (or Written): The GC takes the position that demands for voluntary recognition may be conveyed orally. While the recognition demand must specify the unit the union seeks to represent, there is no requirement that the voluntary recognition demand be written. One does not have to strain to envision disputes over whether or when a demand for recognition was made where a union contends it orally requested voluntary recognition. If a union files an unfair labor practice charge with the NLRB alleging that the employer is unlawfully refusing to bargain with the union because the employer neither extended voluntary recognition nor filed an RM petition within the 14-day period, whether a bargaining obligation is imposed may come down to a credibility determination about what was said in a conversation or on what date it was said.
- Demands for Recognition Are Valid if Made to Any Agent or Representative of the Employer: Many employers would hope that if they must receive a demand for recognition that such a demand would be made to a high-ranking official at the facility or within the organization. But the GC made clear that the employer is on the clock as soon as any agent of the employer – including low-level supervisors – receive a demand for recognition. This clarification further underscores the need to train supervisors concerning their immediate reporting obligations if they receive what is even arguably a demand for recognition.
- Format of Employer-Filed RM Petition: If the employer chooses to file an RM petition on the basis that the union is not seeking to represent an appropriate unit, the employer must specify on the petition the unit sought by the union and, in a supporting narrative, the employer must dispute the appropriateness of the unit and specify what the employer believes to be an appropriate unit.
- Muddled Guidance on Type of Employer Conduct That Will Result in Bargaining Order: The GC reiterated that even one “less serious” violation of Section 8(a)(1) of the NLRA during the “critical period” following a demand for recognition – for example, unlawfully questioning employees regarding whether they attended a union meeting – may result in a bargaining order. But the GC added that the Board would continue to assess “the number of violations, their severity, the size of the unit, the closeness of the election (if one is held), the proximity of the misconduct to the election date, and the number of unit employees affected.” Thus, it seems clear that the assessment of whether a bargaining order will be pursued is heavily dependent on the specific facts at issue and will be made on a case-by-case basis.
The GC’s memo sets forth her position on several questions left open by the Board in Cemex. Employers, however, should prepare for unions to make oral requests for voluntary recognition – and perhaps to low-level supervisors – following the GC’s guidance that will undoubtedly lead to protracted litigation over the sufficiency of the demand for recognition or even if one was ever made by a union. In any case, though, employers must train supervisors at all levels to immediately report possible demands for voluntary recognition.
We will continue to keep you updated as the Board continues to develop the framework established by Cemex.