The Cemex Decision: Navigating The New Era Of Union Organizing

by | Aug 25, 2023 | Breaking, Labor Relations Ink, Labor Relations Insight, Legal, News, NLRB, Politics, Union Organizing

Navigating The New Era Of Union Organizing

Webinar: Wednesday, August 30, 2-3 PM ET. Click here to request an invitation to our webinar on responding to Cemex.  

The National Labor Relations Board issued the following press release today outlining changes to how they will determine when employers must recognize and bargain with a union.  The new standard appears to be a modified version of the old Joy Silk standard.  Here is a link to the decision and the press release from the NLRB.  Read on for our decision analysis and guidance for employers.

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 with the union.

Analysis and Guidance under Cemex

The Cemex decision broadens the path for unions to organize and reshape the conventional dialogue between employers and employees on labor matters. Here, we delve into these anticipated changes and offer insights to help your organization adapt.

Decoding the Cemex Decision

We speculated recently that the Board would use the Cemex case to broadly redefine several aspects of labor law, including a ban on mandatory employee meetings, limiting management’s ability to discuss the employer-employee relationship if a union gets involved, and re-establishing the card check standard from Joy Silk. We have good news and bad news on that front.

The good news is that all the vast reforms we speculated about didn’t happen. The bad news is that the Board released a Cemex decision that creates a new, perhaps very flawed, framework for determining when employers must recognize and bargain with a union.

The new framework in Cemex is a modified version of the old Joy Silk standard. Under this new standard, 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, typically via card check, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election.

However, unlike the “good faith doubt” (as to the legitimacy of the cards presented for recognition) standard of Joy Silk, the Cemex framework holds that if an employer who seeks an election via an RM petition commits any type of unfair labor practice, that alone would require setting aside the election, the RM petition will be dismissed, and—rather than re-running the election—the Board will order the employer to recognize and bargain with the union.

There are a lot of questions about this decision and many things that employers will need to break down in the coming days.

Will Cemex survive a court challenge?

The decision and any future rulings that arise from this new standard are sure to be litigated.

Board member Marvin Kaplan wrote a brilliant and scathing dissent to Cemex that calls out many of the flaws in the decision, essentially saying that his colleagues overlooked mountains of precedent and Supreme Court decisions to construct this flawed new method for determining employee representational status.

… my colleagues today are establishing a new standard that, in many cases, is going to result in lengthy litigation over an alleged violation that will never survive judicial review.”

It’s too early to forecast the outcome, but the initial forecast on how this standard holds up in Court seems dicey.  However, employers must operate in the current status while litigation plays out.

Does Cemex impact the employer’s ability to hold captive audience meetings about union representation or affect an employer’s ability to discuss their direct relationship with employees?

The General Counsel asked the Board to restrict mandatory meetings about union representation, but it did not do so in the Cemex decision. Similarly, the Cemex decision did not change the Tricast doctrine, giving employers some leeway in discussing changes to the employer-employee relationship. The Board indicated a desire to rule on those issues in future cases.

Does this decision make it easier for employees to form a union?

The decision does not necessarily make it easier to form a union. The union must still make a showing of interest and claim majority support to request recognition. The decision does make two significant changes in the process, however.

For many years, the employer did not need to take any action related to filing a petition. The responsibility to file an RC petition fell on the union if the company didn’t voluntarily recognize the union, which most employers do not.

Under Cemex, when the union claims majority support and demands recognition, an employer who wants the union to prove its claim of majority status must file an RM petition.

Furthermore, suppose the employer files an RM petition and is found to have committed even one unfair labor practice. In that case, the Board will simply dismiss the RM petition and issue a bargaining order (and employees will lose their opportunity to vote). There will be a lot of future debate and litigation over how serious the ULP has to be to warrant bypassing the election and issuing a bargaining order. Still, it appears the Board would apply a very low standard.

While these two changes won’t necessarily make it easier to organize, they almost certainly will result in a drastic increase in bargaining orders or unions imposed on a workgroup without a chance to vote.

We will have further updates as needed. We will also hold a webinar next week to review the decision and share our recommendations for employer response.

Click here to request an invitation. Note: This webinar is for management-side labor and employee relations professionals only. (no media or union-side representatives). All attendees must confirm this before we send out the invite links.

As an employer in a Cemex era, what are my next steps? 

Working Left of Boom is Your Best Defense

In light of the ramifications of Cemex, being proactive in strengthening your workplace culture is an important first consideration. Training your response team members and front-line supervisors immediately becomes your best investment toward remaining union-free. Knowing and mitigating risks, understanding the behavior signs of unrest, and strengthening relationships between front-line leaders and their team members should take high priority. Indeed, a rapid and effective response to organizing activities and card signing is more critical than ever.

Boosting Employee Communication

Proactive communication becomes paramount. Companies may be best served to explain the company’s position on unionization during orientation for new hires and periodically throughout the year with incumbent employees by:

  • Educating employees about union operations and implications.
  • Discussing the company’s stance on unionization regularly.
  • Approaching the discussion of changes to the employer and employees’ direct relationship with caution, especially if Tricast is reversed in a future Board decision.

Invest in Training and Development

Companies should provide training to prepare their team for the changing terrain:

  • Provide labor relations training for your response team and key operations leaders to keep them abreast of potential shifts and help them practice conversations with employees to ensure they accurately and effectively describe employee rights.
  • Train front-line supervisors on recognizing the earliest possible signs of union organizing and card signing activity.
  •  Stay informed about NLRB rulings, legislation, and best practices in employee relations. The changes in Cemex are likely to be sweeping, but there are many other potential changes around the corner.

Re-evaluate Bargaining Strategies

You may need to rethink your bargaining strategies. Employees who refuse to attend meetings or sign a card with limited information and don’t get a chance to vote will be very uninformed about the bargaining process. This can lead to a lot of frustration with the process.

Therefore, you should prepare a bargaining strategy that recognizes these potential problems. You’ll probably need to spend more time educating employees about the process and setting expectations for the bargaining. Your communication strategy should include topics that provide a basic understanding of the process. Scenario planning will be indispensable in getting ready for various Cemex outcomes.

Embrace Good Faith but Resolute Bargaining

While negotiations in good faith are vital, it is important to train managers and even your employees on the realities of bargaining:

  • You don’t have to agree to any specific demands, nor can you be required to accept an untenable collective bargaining agreement if you negotiate in good faith.
  • They should understand that the company will remain resolute on pivotal business matters and is under no obligation to agree to union demands it believes are inconsistent with the company’s needs or strategic direction.
  • Communicate regularly about the bargaining process and progress, and correct misunderstandings or misinformation commonly spread prior to and during negotiations.
  • Prepare to deal with any possible work stoppage or potential PR concerns.

Foster a Positive Workplace

Finally, do everything possible to create a positive culture and a thriving workplace. Being proactive in this area can prevent you from having any union organizing issues, no matter how favorable the law gets for unions:

  • Promote open communication, fairness, and respect as core tenets of workplace culture.
  • Assess your risk and vulnerability regularly.
  • Ensure your supervisors are well-trained and approachable.
  • Address employee issues and complaints promptly to diminish the perceived necessity for unions.

Conclusion

The outcome of the Cemex case marks a pivotal juncture in U.S. labor relations. Employers need to be forward-thinking, well-informed, and strategic. You will need to rethink your labor relations communications strategy, invest in labor relations and team relations training for your team, and, in the worst case, prepare to communicate more openly with your employees about the collective bargaining process.

LRI can help. Call 800-888-9115 to talk to an expert immediately.

 

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