A recent decision from the National Labor Relations Board dramatically changes the way
the Board handles union organizing issues, threatening to make it much easier for unions
to organize employers. In Cemex Construction Materials Pacific, LLC, the NLRB issued
an extreme decision, which may impose collective bargaining on employers and
employees without a secret ballot election.
In Cemex, a unit of cement truck drivers and driver trainers voted against representation
by the International Brotherhood of Teamsters by a margin of 179 to 166. The union
alleged that the employer engaged in extensive unlawful and coercive conduct before,
during, and after the election which required remedial measures to include setting aside
the results of the election and affirmatively ordering the employer to bargain with the
union.
After a hearing in which ALJ found the employer threatened employees with plant
closures, job loss, and other reprisals if they selected the Union; surveilled employees
and interrogated them about their union activity; prohibited employees from talking with
union organizers or displaying pro-union paraphernalia; hired security guards in order to
intimidate employees immediately before the election; and disciplined a lead union
organizer for speaking with union organizers on company time, the ALJ set aside the
election, but ordered a new election instead of ordering the employer to enter into
bargaining with the union. On appeal, the Board disagreed – ordering the employer to
enter into bargaining, and establishing a new legal standard for when such orders would
be issued.
Under the current standard, where a union has at some point achieved majority support
(as shown by signed union authorization cards) and an employer has engaged in unfair
labor practices that have the tendency to undermine majority strength and impede the election processes, the Board should require the employer to enter into bargaining with
the union if it 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 is slight and that
employee sentiment would be better protected by ordering the parties to bargain. The
Board considers an employer’s entire course of misconduct, both before and after the
election, in determining whether a bargaining order is warranted. An employer does not
commit an unfair labor practice by refusing to recognize the union based on a majority of
the bargaining unit signing union authorization cards, and insisting on an election before
the Board.
Under the new standard, the Board has made a number of significant changes to Board
law governing when an employer has unlawfully refused to recognize and bargain with a
union representing a majority of its employees:
- An employer now commits a violation of Section 8(a)(5) of the National Labor
Relations Act by refusing to recognize a union that has been designated to
represent a majority of employees unless the employer “promptly” files a
representation petition with the Board (assuming that the union has not already
filed a petition). Essentially, this places the burden on the employer – not the
employee – to petition the NLRB for an election. If an employer fails to make that
request, the NLRB will certify the union on authorization cards alone. - Further, if an employer commits an unfair labor practice that requires setting aside
the election, the representation petition will be dismissed, and the employer will be
subject to a remedial bargaining order.
In the Board’s words, an employer “may not insist on an election, by refusing to recognize
and bargain with the designated majority representative, and then violate the Act in a way
that prevents employees from exercising free choice in a timely way.”
In the Board’s view, the Cemex standard will better deter employer unfair labor practices
during the period leading up to an election, and will further timely elections. However, the
new standard also threatens to turn the focus of a union organizing campaign from a
reliable closed ballot election to union authorization cards, which are not always reliable.
We will continue to monitor this case law as it evolves and keep you up to date on any
new developments. If you have any questions about how the Cemex ruling will affect
your organization, please call our office. Thank you.
This Client Alert provides a general overview of new legal developments. It is not intended to
provide legal advice. If you have questions or would like more information about how these
developments may affect your business, please contact us at (570) 341-8800.
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