The National Labor Relations Board handed unions a victory with a decision that borrows from a long-dormant legal doctrine allowing unions to represent workers without a formal vote.
The NLRB’s Democratic majority Friday created a new test that resurrected elements of the standard from the board’s 1949 ruling in Joy Silk Mills. But unlike that earlier test, the new framework doesn’t turn on proving that employers had a “good-faith doubt” that unions have majority support in order to require them to recognize and bargain with unions.
Instead, the new framework calls on employers to recognize a new union or promptly file for an election when the union asks for recognition based on a majority of workers showing support.
But if an employer seeking an election violates federal labor law in a way that would require setting aside the election, the petition will be dismissed, and the NLRB will order the employer to recognize and bargain with the union.
In the decision, which involved Cemex Construction Materials Pacific LLC, the NLRB overturned the 1971 ruling in Linden Lumber. That now-defunct ruling had formally abandoned the Joy Silk doctrine and held that labor law allows employers to refuse to accept evidence of majority support of a union.
“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,” NLRB Chair Lauren McFerran said in a statement Friday. “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.”
Republican NLRB member Marvin Kaplan partially dissented. The purported holding on what happens when an employer that hasn’t committed numerous unfair labor practices is presented with evidence of majority union support amounts to nonbinding commentary without precedential effect, he said.
But treating that part of the decision as if it is precedential, Kaplan continued, would render it “unsound as a matter of policy and unenforceable as a matter of law.”
“Our experience leads us to conclude that the application of the Gissel standard has resulted in persistent failures to enable employees to win timely representation despite having properly designated a union to represent them, and thereby satisfying the Act’s requirement for recognition,” the board said.
The new standard adopted Friday better ensures workers can bargain collectively, according to the NLRB.
First, it requires employers to either recognize a union based on a showing of majority support or a petition for an election. And if an employer asks for a vote and then violates the law in a way that frustrates a fair election, the board said it would hand down a bargaining order.
“This standard disincentivizes unlawful employer conduct during an election campaign because such conduct would be counterproductive for the employer,” the NLRB said. “Its misconduct ensures that it will be subject to a Board order requiring good-faith bargaining with the union.”
The board found that Cemex committed a slew of labor law violations in response to an International Brotherhood of Teamsters organizing drive, including disciplining and firing a prominent union supporter and threatening job loss and plant closure.
Finding that these violations make a fair rerun election unlikely, the NLRB ordered the company to bargain with the union on the basis of signed authorization cards that show majority support.
Cemex’s attorney, Ross Gardner of Jackson Lewis P.C., declined to comment.
NLRB General Counsel Jennifer Abruzzo had advocated overturning a 1948 precedent that permits such meetings, arguing that they’re inherently coercive.
But the board said Abruzzo didn’t allege or litigate any issue relating to the lawfulness of mandatory meetings in this case.
The record didn’t establish that all or most Cemex employees were required to attend the company’s consultant meetings on threat of discipline, the NLRB said.
The case is Cemex Constr. Materials Pac. LLC, N.L.R.B., Case 28-CA-230115, 8/25/23.
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F*** Biden and his NLRB appointees. This is garbage.
The NLRB’s Democratic majority Friday created a new test that resurrected elements of the standard from the board’s 1949 ruling in Joy Silk Mills. But unlike that earlier test, the new framework doesn’t turn on proving that employers had a “good-faith doubt” that unions have majority support in order to require them to recognize and bargain with unions.
Instead, the new framework calls on employers to recognize a new union or promptly file for an election when the union asks for recognition based on a majority of workers showing support.
But if an employer seeking an election violates federal labor law in a way that would require setting aside the election, the petition will be dismissed, and the NLRB will order the employer to recognize and bargain with the union.
In the decision, which involved Cemex Construction Materials Pacific LLC, the NLRB overturned the 1971 ruling in Linden Lumber. That now-defunct ruling had formally abandoned the Joy Silk doctrine and held that labor law allows employers to refuse to accept evidence of majority support of a union.
“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,” NLRB Chair Lauren McFerran said in a statement Friday. “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.”
Republican NLRB member Marvin Kaplan partially dissented. The purported holding on what happens when an employer that hasn’t committed numerous unfair labor practices is presented with evidence of majority union support amounts to nonbinding commentary without precedential effect, he said.
But treating that part of the decision as if it is precedential, Kaplan continued, would render it “unsound as a matter of policy and unenforceable as a matter of law.”
Keeping Elections Clean
With its new framework designed to deter employers from violating the National Labor Relations Act in the lead up to union elections, the NLRB has walked away from Gissel bargaining orders. The board had imposed those orders when serious unfair labor practices threatened a future fair election, a remedy that the US Supreme Court endorsed in its 1969 decision in NLRB v. Gissel Packing Co.“Our experience leads us to conclude that the application of the Gissel standard has resulted in persistent failures to enable employees to win timely representation despite having properly designated a union to represent them, and thereby satisfying the Act’s requirement for recognition,” the board said.
The new standard adopted Friday better ensures workers can bargain collectively, according to the NLRB.
First, it requires employers to either recognize a union based on a showing of majority support or a petition for an election. And if an employer asks for a vote and then violates the law in a way that frustrates a fair election, the board said it would hand down a bargaining order.
“This standard disincentivizes unlawful employer conduct during an election campaign because such conduct would be counterproductive for the employer,” the NLRB said. “Its misconduct ensures that it will be subject to a Board order requiring good-faith bargaining with the union.”
Cemex Must Bargain
The NLRB applied its new approach to the case against Cemex, a subsidiary of the Mexico-based multinational building materials company CEMEX, S.A.B. de CV. The conduct at issue took place in the company’s ready-mix concrete plants in Nevada and southern California.The board found that Cemex committed a slew of labor law violations in response to an International Brotherhood of Teamsters organizing drive, including disciplining and firing a prominent union supporter and threatening job loss and plant closure.
Finding that these violations make a fair rerun election unlikely, the NLRB ordered the company to bargain with the union on the basis of signed authorization cards that show majority support.
Cemex’s attorney, Ross Gardner of Jackson Lewis P.C., declined to comment.
‘Captive Audience’ Untouched
While the decision gives unions a big boost, the board declined to go even further and outlaw “captive audience meetings,” a major piece of many employers’ anti-union campaigns, which require workers to listen to arguments against unionization.NLRB General Counsel Jennifer Abruzzo had advocated overturning a 1948 precedent that permits such meetings, arguing that they’re inherently coercive.
But the board said Abruzzo didn’t allege or litigate any issue relating to the lawfulness of mandatory meetings in this case.
The record didn’t establish that all or most Cemex employees were required to attend the company’s consultant meetings on threat of discipline, the NLRB said.
The case is Cemex Constr. Materials Pac. LLC, N.L.R.B., Case 28-CA-230115, 8/25/23.
Unions Score Big Win as NLRB Eases Path to Representation (3)
The National Labor Relations Board handed unions a victory with a decision that borrows from a long-dormant legal doctrine allowing unions to represent workers without a formal vote.
F*** Biden and his NLRB appointees. This is garbage.
