Credit Where Credit is Due

The Biden administration has been good on labor issues and antitrust, much better than his three Democratic Party predecessors.

In the latest case, the National Labor Relations Board has ruled that companies that violate labor laws in response to unionization efforts will be ordered to recognize the union.

The National Labor Relations Board on Friday announced a new framework for determining when companies must bargain with unions without an election—a policy that supporters said will make union-busting much more difficult.

Following the NLRB's decision in Cemex Construction Materials Pacific, when workers ask an employer to voluntarily recognize a union as their bargaining representative, the company can voluntarily do so and begin good-faith negotiations.

Alternatively, the company may file a petition seeking an election, and as long as it does not commit unfair labor practices, one will be held. However, if a company does engage in such violations—or refuses to voluntarily recognize a union and fails to file a petition—the NLRB will now order the employer to recognize and bargain with the union without an election.

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In other words, "union-busting just got a lot harder," More Perfect Union said on social media. "This brings the board's position closer to the old Joy Silk doctrine, which held that if a majority of workers signed union cards, there didn't need to be an election at all and bosses just had to recognize the union and bargain in good faith."

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Brishen Rogers, a professor at Georgetown University Law Center, said on the social media platform X that "Cemex may be the most important NLRB decision in a generation."

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In the case of Cemex—a U.S. subsidiary of a multinational that provides ready-mix concrete, cement, and aggregates to the construction industry—the NLRB "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," the agency said in a statement. "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."

NLRB Chair Lauren McFerran connected the Cemex decision and the board's Thursday rollback of policies established under the Trump administration that dragged out union elections—a move also welcomed by workers and labor rights advocates.

This is an unalloyed good, at least as long as it's not struck down by some cracker judge in Texas.

Full text of their decision follows:

Board Issues Decision Announcing New Framework for Union Representation Proceedings

Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov

August 25, 2023

Today, the Board issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election. 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.

Under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election. However, 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.

The Board explained that the revised framework represents an effort to better effectuate employees’ right to bargain through their chosen representative, while acknowledging that employers have the option to invoke the statutory provision allowing them to pursue a Board election. When employers pursue this option, the new standard will promote a fair election environment by more effectively disincentivizing employers from committing unfair labor practices.

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.

“Today’s 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.

Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan joined the majority in part and dissented in part.