Vice President, Labor Policy, U.S. Chamber of Commerce
August 31, 2023
The National Labor Relations Board (NLRB) issued a radical decision on August 25 in CEMEX Construction Materials Pacific LLC (Cemex) that threatens to impose collective bargaining on employers and employees without a secret ballot election—a long-held dream of labor unions. The NLRB’s 121-page ruling abandons over a half-century of precedent and could dramatically reshape labor law as it relates to union representation. It effectively implements one of the key provisions of the PRO Act—namely card check certification.
The Cemex case involved a bargaining unit of about 366 ready-mix cement truck drivers and trainers who voted against being represented by the International Brotherhood of Teamsters in 2019. The vote against the union was fairly close: 179 to 166.
As is often the case following a “no” vote, the union alleged that the employer had engaged in “extensive unlawful and otherwise coercive conduct before, during, and after the election, which require[d], among other remedial measures, setting aside the results of the election and affirmatively ordering the Respondent to bargain with the Union” based on the 1969 precedent in NLRB v. Gissel Packing Co., a Supreme Court case holding that employers may be forced to accept union representation when their actions preclude holding a fair election.
The Board’s erstwhile three-person majority recounted a litany of alleged National Labor Relations Act (NLRA) violations and rejected an administrative law judge’s recommendation that a new election be held. Instead, they used the case as an opportunity to announce a new framework for determining union certifications without an election—or, even in instances where employees had already rejected a union in a secret-ballot election.
For starters, the new Cemex standard flips the long-standing process of seeking an election on its head. Until August 25, if a union presented an employer with signature cards and demanded recognition, an employer could decline to recognize the cards. This is not entirely unreasonable, as NLRB precedent, circuit court rulings, and Supreme Court rulings have all found signature cards to be a less reliable basis for determining employee sentiment than secret ballot elections. If an employer did not recognize the union based on cards, the onus then passed to the union to petition the NLRB to conduct a secret ballot election.
Under the new Cemex standard, the burden is now on the employer to petition the NLRB for a secret ballot election. If an employer does not do so, and the Board suggests a 14-day time limit, the NLRB will certify the union based on signature cards alone and demand that the employer begin collective bargaining.
Moreover, if the NLRB decides that the employer has committed any unfair labor practices during the election window, it has given itself the discretion to reject the election petition and certify the union based on signature cards. In other words, the Board will recognize the union based on signed authorization cards, better known as card check.
According to an NLRB press release announcing the decision:
In reading that statement, it doesn’t take much to realize it opens a gaping hole for the Board—depending on who’s in charge—to use just about any alleged violation of the law—say, perhaps, an errant handbook policy—as a pretext for claiming that the employer must recognize and negotiate with a union without an election.
The NLRB’s lone Republican, Marvin Kaplan, issued a dissent in which he criticized the Board’s majority for its sweeping ruling. He opined, “under the majority’s purported standard, employees’ right to a secret-ballot election hinges on whether or not an employer successfully anticipates and avoids all actions that could be viewed as violations of the [National Labor Relations] Act.” The ruling, he concluded, will have “the primary effect of negating the rights of current employees rather than furthering them.”
The NLRB’s general counsel had urged the Board in a filing to restore the legally dubious doctrine known as Joy Silk, which required an employer to bargain with a union unless it had a good-faith doubt of the union's majority status. While the Board did not fully do so, its decision in Cemex comes pretty close, and one can expect legal challenges to follow.
In the meantime, at least one labor union did not waste much time in taking advantage of the Cemex decision. On August 28, a Linked-in post reported that Trader Joe’s United had become the first union to request a so-called Cemex bargaining order against the company. With the floodgates now open, more are surely on their way.