Mcle Self-study Cemex Construction Materials: Is the Future of Union Organizing in the Cards?
| Jurisdiction | United States,Federal |
| Citation | Vol. 37 No. 6 |
| Publication year | 2023 |
AUTHORS*
Susan K. Garea
Thomas A. Lenz
Michael R. Watts
L. Brent Garrett
Caren Sencer
On August 25, 2023, the National Labor Relations Board (NLRB) issued its decision in Cemex Construction Materials Pacific, LLC,1 adopting a new framework for imposing a bargaining obligation on an employer without a union prevailing in a Board-conducted secret ballot election. Under Cemex, if a union with majority support demands recognition, an employer must grant it or, within two weeks, file an election petition to test the appropriateness of the unit or the union's majority support, or run the risk of violating its bargaining obligation under the National Labor Relations Act (NLRA).
While bargaining orders had always been a possible remedy for an employer's unlawful conduct during the critical election period (the time between filing the petition and the election),2 they were so rarely issued that in all but the most extreme and egregious cases, a rerun election would be ordered. Now under Cemex, an employer may be ordered to recognize and bargain with a union where the union has majority support of an appropriate bargaining unit and the employer's unlawful conduct during the critical election period prevents a free, fair, and timely election, effectively eliminating the rerun election remedy in many cases. With Cemex, the calculus has significantly changed for employers in responding to their employees' unionization efforts.
In December 2018, the International Brotherhood of Teamsters (IBT) filed a petition with NLRB Region 28 seeking an election in a unit of all ready-mix drivers and second batchmen (who also work as ready-mix drivers) throughout Southern California and Southern Nevada. This unit consisted of 366 drivers at 24 batch plans. At hearing, the parties stipulated that IBT asserted it had majority support and that the employer refused to recognize IBT as the drivers' exclusive representative.
During the critical period, Cemex engaged in a massive anti-union campaign that, according to public filings, cost more than $1,000,000 and involved six consultants who were onsite at the various batch plants for months. Cemex held mandatory meetings to convey its anti-union position and had its supervisory staff and paid consultants engage in one-on-one discussions with drivers about why they should not unionize.
During its campaign, Cemex engaged in a score of preelection violations, including surveillance of employees' union activities, illegal rules regarding union stickers, and misrepresentation of the rights of striking employees. It also threatened to close individual plants, shut down the entire arm of the employer's business, deny access to supervisors, and remove benefits. These violations, by multiple levels of management, occurred at multiple locations.
The election was held on March 7, 2019. IBT lost 166 to 179. A very public union supporter was also written up and discharged in the months immediately following the election.
During and after Cemex's anti-union campaign, IBT filed numerous unfair labor practice (ULP) charges with the NLRB.3 IBT filed objections to the election, many of which tracked the unfair acts described in the ULP charges. In keeping with NLRB procedure, the hearing on the objections was postponed until after the ULP charge investigations were complete so all allegations could be consolidated into a single hearing. The investigation took more than a year.
The hearing opened in November 2020 and continued through February 2021. More than 40 witnesses were called, and dozens of exhibits were filed, which included the authorization cards IBT had provided the NLRB as the showing of interest for the election. This was a necessary component, as the NLRB General Counsel explicitly sought a Gissel4 bargaining order as the remedy for Cemex's violations of the NLRA.
The ALJ issued his decision on December 16, 2021. Though he found multiple egregious violations of the Act and objectionable conduct sufficient to overturn the election, he did not order a Gissel bargaining order. Instead, he ordered a set of remedies intended to provide IBT with access to Cemex's drivers for two years or until a new election was held—at a time IBT proposed. These remedies included access to Cemex's breakrooms and bulletin boards, equal time to speak if Cemex decided to talk to the drivers about unionization, and updated lists of contact information for the drivers.5 The ALJ also ordered Cemex to return the discharged activist to work with full backpay.
All parties filed exceptions to the ALJ's decision, which is the method for seeking NLRB review. Cemex argued that it did not violate the law and the remedies were too severe. The General Counsel argued the sanctions were not severe enough—not only that a Gissel order should have issued, but the NLRB should return to the Joy Silk6 doctrine. The General Counsel further argued that the NLRB should review employer speech standards to find captive audience meetings and employer statements of loss of access to management that violated the NLRA.7 IBT joined in the briefing of the General Counsel and argued for additional violations of the NLRA to be found.
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On August 25, 2023, the NLRB issued its decision. All members agreed with the ALJ that Cemex had repeatedly violated the NLRA and the violations impeded employee free choice during the election. The significance of the decision lies in the remedies for an employer's violations during the critical election period.
The majority weighed the various factors associated with issuing a Gissel bargaining order and determined an order was warranted. Generally, a Gissel order is appropriate if "the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, through present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order."8 In doing so, the NLRB noted that Cemex's acts were part of a "carefully crafted corporate strategy designed to skirt as closely as possible the fine line between lawful persuasion and unlawful coercion."9
After determining a Gissel order was appropriate, the NLRB announced a new framework for bargaining orders, applicable to all pending and future cases. First, it tracked the history of the relevant statutory language. Section 9(a) of the NLRA states: "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment."10 The statutory language contemplates that employees will choose their union representative by designation or selection. This has been interpreted to mean that a union can come into place either by means of an election or by voluntary recognition.11 An amendment was contemplated in 1947 to provide for recognition only by means of an election, but that language was not added to the Act.
The Board then looked at the intervening case law—in particular, Joy Silk and Linden Lumber.12 In Joy Silk, the NLRB held "an employer unlawfully refuses to recognize a union that presents authorization cards signed by a majority of employees in a prospective unit if it insists on an election motivated 'not by any bona fide doubt as to the union's majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union.'"13 Under the Joy Silk standard, if the employer did not doubt majority support and instead was using the election process to buy time to reduce union support, a bargaining order would issue. The standard was criticized as difficult to apply because it turned on the employer's subjective motivation for denying voluntary recognition. Subsequently, during oral argument before the U.S. Supreme Court in Gissel, the NLRB abandoned the Joy Silk doctrine.
This abandonment was formalized in Linden Lumber, where the N LRB held that an employer does not violate the N LRA "solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election."14This resulted in the absence of a remedy when an employer refused to bargain with a union without an NLRB certified election, even if it did not doubt the union's majority support.
In Cemex, the NLRB explicitly overruled Linden Lumber and announced a new standard that provides unions and employees the right to voluntary recognition without the pitfalls of the subjective good faith doubt test. Under the new framework, an employer violates section 8(a)(1) and (5)15 if it refuses to recognize, upon request, a union that the majority of its employees have designated as their representative unless the employer files a petition with the NLRB to test majority support or to determine the appropriateness of the unit.16 Further, if a petition is filed, by either the union or the employer, regarding the unit in which the union claims majority support, and the employer engages in a ULP that "requires setting aside the election," the "petition will be dismissed, and the employer will be subject to a remedial bargaining order."17
As a result, "this accommodation of the section 9(c) election right with the section 8(a)(5) duty to recognize and bargain with the designated majority representative will only be honored as long as the employer does not frustrate the election process by its unlawful conduct." Recognizing that "[r]epresentation delayed is often representation denied," the Cemex framework is intended to decrease the amount of litigation and time before the chosen representative of...
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