Update: NLRB releases Cemex decision 0n 8/25
Today, the Board issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election. The new framework will both effectuate employees’ right to bargain through representatives of their own choosing and improve the fairness and integrity of Board-conducted elections.
Under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election. However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and—rather than re-running the election—the Board will order the employer to recognize and bargain
For the latest guidance on responding to the Cemex standard, click here.
Seismic Shift in Labor Law?
The American labor scene is poised for a seismic shift. All eyes are on the Cemex case at the NLRB, which could be the most radical change in labor law since the 1960’s. As General Counsel Jennifer Abruzzo’s 2022 brief indicated, unions would get a huge lift.
Brace yourself if you’re at the helm of labor relations in a U.S. company. The buzz is that the Board will drop its verdict on Cemex before Gwynne Wilcox’s term concludes on August 28th. This decision could ease the path for unions to organize and reshape the conventional dialogue between employers and employees on labor matters.
Given the significant potential impact that this could have, we wanted to provide you with a preview of what these changes could look like worst. As soon as we see the specific decision, we will notify you and follow up with guidance on how to respond very quickly, including a newsletter and a webinar.
Decoding the Cemex Decision and the Joy Silk Doctrine
Let’s delve into what the Board may change in the coming days:
The Cemex case might redefine employer-employee interactions, restrict obligatory union discussions, and breathe life back into the Joy Silk doctrine. Here’s a breakdown:
- Joy Silk Explained: Stemming from a 1949 NLRB ruling, the Joy Silk doctrine emphasized the weight of union authorization cards. If a union presented cards from the majority, employers had to either express “good faith doubt” about the union’s majority status or recognize the union. The Cemex case would reinstate the Joy Silk standard, potentially allowing unions to sidestep NLRB elections in favor of card-check authorization.
- Captive Audience Meetings: The Cemex decision might also prohibit captive audience meetings, which are mandatory group or 1:1 meetings where employers discuss union-related topics with employees. Prohibiting these meetings, which the 1947 Taft-Hartley Act legitimized, would curtail employers’ capacity to shape opinions on unionization.
- The Tricast Twist: The Tricast doctrine allows employers to tell employees they lose the ability to talk directly to management if they vote for a union. In Cemex, the General Counsel is asking the Board to reverse this doctrine and require employers, anytime they bring up the changed relationship, to also inform employees of their right to bring individual grievances to an employer when represented. This change will require managers to be very careful when they discuss how unions change the relationship between the company and employees.
We will be back with further updates as soon as they develop.
