Flipping Cemex…An Alternative to Conventional Decertification

One of the most challenging and frustrating situations for an employer, that has recently lost a union election, is to hear from its employees that they are frustrated with the union and would like to get rid of it. The conventional approach is for a sizable percentage of the workforce to file a decertification petition with the National Labor Relations Board. The petition, as we all know, must be supported by 30% of the bargaining unit, and the petition cannot be filed when an existing labor agreement is in force, except for the period shortly before it expires. Adding to the employer’s frustration is the legal restriction of assisting employees with the filing of a petition.1 Therefore, due to lack of courageous employee leadership or intimidation by the union, many budding decertification opportunities die on the vine. Hold that thought.


In Cemex, which has been prominent in labor relations news for months, the National Labor Relations Board engaged in a radical departure from nearly 90 years of precedent under the law. For the first time ever, an employer no longer has the right to refuse to bargain with the union based on its good faith doubt that the union represents a majority of its employees, and for the first time ever, if the employer doesn’t recognize the union after a demand, the employer must file a petition to have an election conducted to resolve the question concerning representation. Otherwise, the NLRB will order the employer to bargain with the union. Another interesting aspect is that even a minor mistake that is determined to be an unfair labor practice by a low-level supervisor can cancel the election and allow the NLRB to issue a bargaining order. Clearly, many employers will be victimized by this new rule until somebody has the courage and financial wherewithal to challenge the rule in federal court.


But this piece is not related to dealing with that aspect of the Cemex decision. The tactic that is the subject of this “Heads Up” exposes a potentially soft underbelly of Cemex and is intended to offer some optimism for the employer who has lost a union election, has bargained for a year or more since the election was certified without reaching a contract, who is not named in an open unfair labor practice charge, and whose employees have expressed interest in getting rid of the union.


The petition, intended to be used under the Cemex principle, is known as an RM petition…in NLRB nomenclature. It is a management filed representation petition which, if processed, will result in a secret ballot election conducted to resolve whether or not the employees want to continue to be represented by their union. It has two uses. The first is when there is a demand for recognition and picketing intended to force the employer to recognize the union. The second is when an employer believes that the union no longer enjoys majority support. In both cases, the NLRB will investigate to determine if the petition is proper. If so, the Board will schedule and conduct an election to determine if the employees want to be represented. This eliminates the frustrating part of getting a significant number of employees to sign a petition to get rid of the union. Here’s where the fun begins.


How to do it?


An employer faced with the conditions referenced above, e.g., has lost a union election, has bargained for a year or more since certification without reaching a contract, is not named in an open unfair labor practice charge, and whose employees have expressed interest in getting rid of the union, files the RM petition. The form is available on the NLRB’s website under the button, “What We Do.” The form is very straightforward and understandable. Boxes 7a and 7b are the most important parts. They ask when the demand for recognition occurred. That date is when a demand was originally made, or if there was no demand, the date the original petition was filed. Based on the underlying thinking of the NLRB in Cemex, this should satisfy the objective consideration requirement of the RM, and the petition should be processed. Remember in the Cemex doctrine, the only requirement is the demand…the union’s original petition will serve as a demand. Should is used advisedly.


Furthermore, once the petition is docketed by the NLRB, you are free to communicate with your employees about the particulars of the decertification process, as well as your preference to remain union free.


The NLRB will not take this lying down. This is an affront to their shamelessly biased attempt to assist unions in organizing employees. They did not do this unwittingly. The general counsel of the NLRB is so prejudiced against employers and so willing to help unions that she painted this portrait of her efforts to help unions as a way to memorialize her reign.


You really have nothing to fear. If the NLRB rejects your effort, the remedy will be to dismiss the petition and order you to bargain with the union, which is exactly where you are now. However, if the NLRB acts capriciously, their behavior may present you with an opportunity to refuse to bargain. Make them enforce their bargaining order before an appellate court and become the heroes of the employer community.


Caution: Do not proceed without competent counsel, and, as always, I am available for guidance and encouragement.


Bill Adams


Adams, Nash, Haskell & Sheridan



[1] An employer who is found to have offered any assistance beyond ministerial instruction to employees will nullify the processing of the decertification petition, and the case will be dismissed.