On August 25, the National Labor Relations Board (NLRB) issued a decision in Cemex Construction Materials Pacific, LLC that established a new way to determine when employers must start bargaining with unions without a representation election. What this means is that if an election has been called and the company where workers are trying to form a union commits an unfair labor practice leading up to the election, the NLRB can cancel the election, certify the union, and require the company to start bargaining with the union.
“The new framework will both effectuate employees’ right to bargain through representatives of their own choosing and improve the fairness and integrity of Board-conducted elections,” said the NLRB-issued press release on the decision.
The new rule says that when the majority of a company’s employees sign union cards and ask for recognition, the company must either recognize the union or file a petition requesting a formal election within two weeks. In a crucial change, though, “if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and — rather than re-running the election — the Board will order the employer to recognize and bargain with the union.”
In the original case that led to this decision, CEMEX had been found guilty of intimidation of its workforce in the weeks leading up to the union representation election. 
“The company’s behavior during this election was abhorrent and we feel vindicated now that they are being held accountable,” said Bubba Davis, Teamsters Building Materials and Construction Trade Division Director, in the December 2021 press release following the original CEMEX decision. “This company threatened, harassed, surveilled, intimidated and deceived its own workers with rampant illegality in order to disrupt their union organizing campaign. CEMEX even hired security guards to stand outside of the voting locations as a form of suppression.”
Benefits of the decision for Labor include:
1. Streamlining the election process: The decision should streamline the union representation election process. The decision should stop companies from unnecessarily delaying union elections and ultimately speed up elections. It should enable the timelier establishment of a union in the workplace.
2. Ensuring fairer elections: The decision establishes guidelines to ensure fairer union representation elections. It could put a stop to some unfair labor practices such as employer interference, coercion, or intimidation, which can impede worker organizing efforts. 
3. Enhancing worker protections: The decision strengthens worker protections during union representation proceedings. It will provide clearer guidelines on what employers can and cannot do during the election process, safeguarding workers’ rights to freely choose whether or not to unionize. This can create a more supportive environment for unions to organize and represent workers effectively.
4. Promoting union growth: The decision could make it easier for workers to achieve union representation and increase the likelihood of successful union elections. This ultimately strengthens the collective bargaining power of unions and allows them to negotiate better wages, benefits, and working conditions on behalf of their members.
The new Cemex standard differs from the historical Joy Silk standard, which required an employer to bargain with a union unless it had a good-faith doubt of the union’s majority status.
“[This] decision, along with the Board’s recently issued Final Rule on Representation, will strengthen the Board’s ability to provide workers across the country with a timely and fair process for seeking union representation,” said Chairman Lauren McFerran.
“The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment. Under Cemex, an employer is free to use the Board’s election procedure, but is never free to abuse it—it’s as simple as that.”
In Cemex, the Board found that the employer engaged in more than 20 instances of objectionable or unlawful misconduct during the critical period between the filing of the election petition and the election. Accordingly, the Board found that the employer was subject to a bargaining order under both the Supreme Court’s decision in NLRB v. Gissel Packing Co. and under the newly announced standard, applied retroactively in this case. ν