As we previously reported and discussed here, the Cemex Construction Materials Pacific, LLC ruling has dramatically changed the threshold that will prompt the National Labor Relation Board (“NLRB”) to issue mandatory bargaining orders and is going to have a significant impact on the manner in which employers may respond to union organizing efforts. As the NLRB held in Cemex, if a union demands voluntary recognition based on a showing of majority support, the employer has two choices, which it must exercise within two weeks: (i) recognize and bargain with the union, or (ii) file a RM-Petition to initiate the NLRB conducting a secret ballot election. If the employer chooses the latter, and commits an unfair labor practice during the election period, the NLRB likely will require the employer to recognize and bargain with the union.
