Employer Bids for Union Elections Boom in Wake of Cemex Ruling

The number of employer requests for union elections has exploded since the National Labor Relations Board adopted a new framework for representation last summer.

Employers have submitted 254 union election petitions in the six months since the board’s August 2023 decision in Cemex Construction Materials Pacific, LLC, a landmark ruling designed to reduce labor law violations in the run-up to a vote by establishing paths to union representation without an election.

The number of employer-filed election requests, known as “RM petitions,” following Cemex represents a more than 2,700% increase over the nine petitions filed in the six months before the decision was issued.

Over the last decade, employers have filed an average of 46.5 RM petitions per fiscal year. They’re on pace to file roughly 630 RM petitions in FY 2024.

The colossal spike in employer-filed election petitions is the most noticeable short-term impact of Cemex and is consistent with how the framework operates.

When a union says it has majority support of workers and requests recognition, Cemex directs that an employer can either recognize and bargain with the union or file a petition for an election. If an employer violates labor law ahead of the vote after a union made a demand, the NLRB will order it to recognize and bargain with the union.

NLRB administrative law judges have issued just two Cemex bargaining orders based on unfair labor practices committed in the critical period before an election out of a total 79 decisions during that time.

First Crack

Elections triggered by employer-filed petitions aren’t any different than those from unions, called “RC petitions,” labor lawyers said.

But they do give employers an early opportunity to weigh in on which workers would be represented by the union, known as the bargaining unit.

“The RM petition gives employers a first crack at the unit description, so it’s a little bit of taking destiny in their own hands,” said Steven Porzio, an attorney at Proskauer Rose LLP who represents management. “Even if the union files a dueling RC petition, at least you’ve got your flag planted on your view of the appropriate unit.”

Companies can also gain some leverage when bargaining over an election agreement to avoid a hearing when they take a first cut at defining the unit in a petition, Porzio said.

Nevertheless, employers that file election petitions still have the burden of showing that the unit that the union originally sought to represent is inappropriate, according to NLRB General Counsel Jennifer Abruzzo’s Cemex guidance memo.

But it’s not clear whether an employer must file an RM petition to challenge a union’s unit definition, or if a statement of position in response to a union’s RC petition is enough, said Amy Moor Gaylord, co-leader of Akerman LLP’s traditional labor law practice.

“The marked increase in RM petitions is directly related to employer uncertainty about what’s needed to protect the right to contest the unit,” Gaylord said.

Demand and Wait

Theoretically, the Cemex framework gives a union a relatively quick path to bargaining if it doesn’t file for an election and the employer doesn’t submit its own petition within 14 days after a demand for recognition.

But in practice, the demand-and-wait strategy can significantly delay a process that would otherwise move swiftly, said Matt Pierce, a union-side attorney with Asher, Gittler & D’Alba Ltd.

“Two weeks for some organizing drives would be an unacceptable delay,” he said.

Pierce said he’s seen unions demand recognition and file a petition at the same time, which gives them both control over timing and Cemex’s protections against unfair labor practices in the lead up to the election.

Meanwhile, courts have yet to consider the merits of any bargaining orders that have come from an employer’s failure to file for an election after a union demanded recognition.

Letting the 14-day clock expire and facing an unfair labor practice case for running afoul of the Cemex framework would be a fast route for an employer to get the issue before an appellate court, said Corey Franklin, a management-side attorney with FordHarrison LLP.

“To the extent it’s your position that the Cemex holding is not legally justifiable for a host of reasons,” Franklin said, “then you’re in a superior position to address those legal issues by not filing an RM petition.”