The NLRB's Cemex Decision: A Game Changer for Union Organizing

By Swerdlow Florence Sanchez Swerdlow & Wimmer

October 2, 2023

In a groundbreaking decision a few weeks ago, the National Labor Relations Board ("NLRB") released its ruling in Cemex Construction Materials Pacific (Cemex), NLRB Case No. 28-CA-230115, ushering in a new era for labor relations in the United States. The Cemex case centered on allegations of unfair labor practices (ULPs) committed by an employer before, during, and after the union had garnered a majority of authorization cards from employees in the bargaining unit. This decision introduced two pivotal changes: a modified Joy Silk doctrine facilitating card check recognition and a lowered threshold for issuing bargaining orders without holding an election.
 
Largely Reviving the Joy Silk Doctrine
 
The NLRB’s decision in Cemex marked the nearly complete revival of the Joy Silk doctrine, which had remained dormant since 1948. Under this doctrine, employers were required to recognize and bargain with a union if it demonstrated majority support through signed authorization cards, unless the employer had a “good faith doubt” about the cards’ authenticity or the union’s support. No secret-ballot election would even be held. While Cemex did not fully adopt Joy Silk, it effectively opened the door to de facto authorization of a bargaining unit without an election.
 
The New Standard – Joy Silk Light
 
In Cemex, the NLRB introduced its new standard for forcing an employer to recognize a union when it presents a majority of signed authorization cards to an employer. In doing so, the NLRB explicitly overruled Linden Lumber, a case that had abandoned the Joy Silk doctrine, allowed employers to reject authorization cards as proof of majority support, and required the union to file an election petition. Linden Lumber, upheld by the Supreme Court, had been the standard for more than half a century.
 
Under the new standard, when a union demands recognition and presents authorization cards signed by a majority of employees in the proposed bargaining unit, an employer must either recognize the union as the bargaining representative (without holding a secret-ballot election) or file its own Representation Petition (RM petition) within two weeks of the union’s demand for recognition. Importantly, the employer can file the RM petition without requiring a “good faith” doubt about the cards’ authenticity. However, this is the only way to provide employees with a secret-ballot election.
 
Lowering the Threshold for Bargaining Orders
 
Another notable change introduced by Cemex was reducing the threshold for the NLRB to issue Gissel bargaining orders, instead of rerunning an election when an employer commits ULPs during the critical period between the petition and the election. Previously, Gissel bargaining orders were reserved for cases with severe violations that rendered a fair election impossible.
 
Cemex reasoned that this new framework was essential to address the assumed impact of ULPs committed by employers during the critical period that might hinder employees’ free and unbiased choice of representation. The dissent, however, criticized this approach, fearing that it would lead to prolonged litigation without practical resolution.
 
Single Violation Can Lead to a Bargaining Order
 
In cases where an employer commits any violation of the NLRA during the election’s “critical period,” the NLRB may dismiss the RM petition (voiding the election results), certify the union as the exclusive bargaining representative, and issue a bargaining order, compelling the employer to negotiate with the union. Bargaining orders will be issued instead of rerunning elections when the NLRB determines that traditional remedies have a slim chance of erasing the effects of past practices and ensuring a fair election.
 
The NLRB will consider factors like the number and severity of ULPs, their proximity to the election, the unit’s size, the margin of the vote, and the number of employees affected when deciding whether to issue a bargaining order.
 
In Cemex, the NLRB pointed to several ULPs committed by the employer before, during, and after the election campaign, thereby justifying the issuance of a Gissel bargaining order. These included threats of discipline, restricting employee communication with union organizers, threats of plant closure or relocation, and the dissemination of misleading information. The cumulative impact of these ULPs led the NLRB to conclude that a fair election was impossible. In response, this NLRB not only issued a Gissel bargaining order, but also re-wrote the law entirely.

Practical Takeaways for Employers
 
In light of the Cemex decision, employers should take the following immediate actions:
 
1. Understand the New Timeline and Procedure: Be mindful of the two-week window for filing an RM petition after receiving a demand for recognition.
2. Be Prepared: Employers should be trained and prepared for potential elections at any time as unions will gather signed cards without employers’ knowledge.
3. Focus on Compliance: To avoid ULP charges leading to recognition and bargaining orders, employers should undergo a union assessment and consider preemptively implementing training on best practices and union avoidance.
4. Training: Train employees and supervisors about the significance of authorization cards.
5. Review Handbooks and Policies: Employers should review their policies for compliance with the new standards and avoidance of ULPs challenging the employer’s maintenance of an allegedly unlawful handbook.
 
The NLRB’s Cemex decision represents a significant shift in labor relations, redefining the rules of union organizing. While it may face legal challenges, employers must adapt to these changes promptly and consider the practical implications for labor relations in this new era of union organizing and empowerment. By taking proactive steps and being well-informed, employers can navigate the evolving landscape of labor relations.
 
Employers should review their Employee Handbooks and refresh their union-avoidance practices in response to Cemex. Contact your SFSS&W attorney if you would like to train managers on the best practices for union avoidance or if you have any questions regarding the new union landscape.

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