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A new standard for union elections – the Cemex case

A new standard for union elections – the Cemex case puts the burden on employers to request elections.

Since passage of the National Labor Relations Act (NLRA) in 1935, the union-requested secret ballot election has been the gold standard for determining whether employees will be represented by a labor union.

After all, an employee in the privacy of a voting booth can safely vote either for or against a union with complete anonymity. In a mass meeting to sign authorization cards, that same employee may feel strong pressure to go along with the group and sign a card out of peer pressure.

On August 25, the Board decided by a 3-1 majority (McFerran, Wilcox and Prouty for the majority; Kaplan dissenting) that it will bypass the election process and simply order an employer to bargain with a union if a majority of eligible employees have signed union authorization cards. (Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters, 372 NLRB 130 (2023)

Under the new Cemex standard, the employer has three options when a card-majority union is presented to the employer:

1) The employer can file a RM petition with Board requesting a secret-ballot election;

2) The employer can voluntarily recognize the union; or

3) The employer can do nothing, and the Board will issue a bargaining order. The company can commence bargaining; or if it declines to bargain, the Board will issue a ULP for failure to bargain and the matter will be litigated.

Most employers will likely take the first option and quickly request an election. Some employers will voluntarily recognize the union and commence bargaining.

Employers who take option three and refuse to bargain will do so at their peril since employers will have the burden of disproving majority union status. And they should certainly make no unilateral changes to wages, hours or terms and conditions of employment pending the complete resolution of the Board’s ULP.

If that was the end of the Cemex findings it would be significant – it changes the burden of seeking an election from the union to the company. But here, as Paul Harvey would have said, is “the rest of the story.”

The Cemex Board also found that the employer committed two dozen ULPs in the run-up to the union election. The employer had conducted an aggressive campaign to counter the union’s petition for election.

After extensively discussing past Board precedents (e.g., Joy Silk Mills, Inc.,85 NLRB 1263 (1949), Linden Lumber Division, Summer & C. v. NLRB, 419 US 301 (1974), NLRB v. Gissel Packing Co., Inc, 39 US 575 (1969)), the Board also ruled that if an employer commits a ULP that would invalidate the election, there will be no second election and the Board will issue a bargaining order.

The Board argued that ULPs committed by an employer during the election process may make a fair subsequent election impossible, with the culture so tainted by the employer’s actions that it would affect the outcome of the next election.

So in summary, the Board’s new election standard is:

1) If the employer wants an election, it must request it in a timely manner after presentation of the card majority.

2) If the employer commits a ULP in the run up to the election, the Board will likely find that a subsequent election would be tainted by the act or acts of the employer and will therefore issue a bargaining order and the company now has a union.

The Board made its decision retroactive, as it tends to do these days. Unions often file ULPs when they have lost elections, so there will likely be a number of old cases resurrected from the dead by Cemex allegations.

The Board did not consider whether captive audience meetings constitute unfair labor practices in the Cemex case. Labor relations attorneys and practitioners widely predicted that Cemex would cover that topic also.

But the Board’s sights are squarely set on captive audience meetings, arguing that mandatory meetings are per se coercive. Employers would be wise to schedule voluntary meetings that are advertised in a manner that will attract employees. Should the Board decide that mandatory employee meetings are unlawful, and should the ruling be made retroactive, then mandatory meetings during the election run up could be ULPs that might trigger a Cemex bargaining order.

The Cemex case will likely be challenged in the courts, and board member Marvin Kaplan’s vigorous dissent identifies areas where, in his opinion, the case runs afoul of controlling legal precedents. But for now, Cemex represents the Board majority’s new standard for union elections.

This article is a very brief summary of the Cemex decision and does not cover all of the important discussions in its 121 pages, including extensive footnotes and the dissent. It is a worthwhile read for employers with the patience and time to do so.

With union organizing on the upswing and Board decisions that will make organizing easier for unions, it is critical that employers be well aware of the do’s and don’ts and best practices in labor relations. Let us help you at MARC, with seasoned labor professional who can help you be successful.


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