Employers are keeping an eye on the Cemex Construction Materials Pacific appeal pending before the Ninth Circuit of an August 2023 National Labor Relations Board ruling that upended decades-old precedent in labor law and raised the stakes for employers facing union drives. “It used to be safe to get a letter from a union and shrug your shoulders…and now it’s not safe,” says Hugh Murray, Chair of McCarter’s Labor & Employment Practice Group. The ruling changed precedent in two ways. First, it required employers to proactively respond to a union’s claim that it represented workers either by recognizing the union or petitioning the NLRB to test the workers’ support of the union. Second, it lowered the bar for the NLRB to order bargaining if the employer made a misstep during the election.
With this appeal before the court and the potential for the current more business-friendly, Republican-majority NLRB reversing the Cemex decision, employers are facing a lot of uncertainty. “A lot of smaller businesses are just like, ‘Listen, tell me what the rule is. I’ll try to follow the rule, and we’ll go from there.’ So it’s disruptive to have that uncertainty,” Hugh says.