NLRB’s Cemex Decision Could Make a Difference

Biden Labor NLRB Supreme Court Unions

   Heerlen           The only thing that really changes the prospects for workers joining unions is actual organizing, but the law can make the process harder, as we have seen for decades, or easier, as we always hope.  We are about to see if unions rise to the challenge and seize the moment being offered by recent decisions by the National Labor Relations Board (NLRB).

First, the Board ditched the slowdown to elections that Trump’s NLRB had implemented after the faster track procedures under the Obama NLRB.  Research has consistently established the faster elections, which mean shorter company campaigns against the union, lead to higher win rates by unions.

The next day, the Cemex decision ordered the cement company to bargain with the Teamsters because the level of their unfair labor practices tainted the election so severely that a rerun would be inappropriate was issued.  The Supreme Court in a 1970s decision in the Gissel case had created a process that is often referred by organizers as a Gissel bargaining order.  Technically, such an order was also a remedy for egregious unfair labor practices, but in practice it was as rare as hen’s teeth.  The NLRB’s General Counsel Jennifer Abruzzo, appointed by Biden administration, had been expressing her belief that the Joy Silk decision, which had been supplanted by Gissel, needed to be revived.  This 3-1 decision by the NLRB is proof that they found facts on the ground in the workplace that allowed significant revisions.

Essentially, Cemex in theory offers an alternative path for workers to seek union recognition by demonstrating a majority of support from the bargaining unit through a petition or union authorization cards signed voluntarily by the workers.  Once employers receive the union’s assertion of their majority in some form, they would have two weeks under Cemex to either begin the process of collective bargaining towards an agreement or filing for an election with the NLRB.  This is not a brand-new procedure.  In winning a representation certification, a union is guaranteed that the employer can not question its majority for a year.  After that period, if there is still not an agreement, the company, absent unfair labor practices, has always had an option of filing for an election to force the union to once again prove its majority.  Cemex would more clearly transfer the burden of filing for an election to the employer, if they want to contest the majority showing by the union when it demanded recognition, which had been at the heart of the earlier Joy Silk decision.

Of course, Cemex will be appealed, so this is hardly over, although in the meantime it will be an option.  Our union recently filed a series of charges based on the New Orleans Regional Transit Authority (RTA) both withdrawing recognition on a unit that they had de facto recognized for months and further refusing to continue bargaining on the renewal of our existing contract.  It will be interesting to see if Cemex comes to play.

Will this actually change the prospects for increased union organizing and restore a more even playing field for workers to join unions?  That’s a harder question.  Unions are certainly experiencing a high-water mark now in public support in most polls in the United States.  Nonetheless, many will likely wait and see what happens in the appeals.  Organizing departments for many unions have been decimated over the years, so rebuilding them will take time and resources that many may not have closed at hand.  Cemex doesn’t make the organizing easier, it just smooths some of the path to recognition, once workers decide they want a union, but it will be easier to run a campaign for two weeks for recognition while workers wait on pins and needles to see if the employer forces them to an election.