From the agency’s press release, the National Labor Relations Board ruling today in Cemex Construction Materials Pacific LLC is a vindication for the union organizers at Cemex but also a powerful precedent that will meaningfully shift the balance of power in union elections going forward. This is a big win for workplace democracy and the right to organize. The finding: if employer’s unfair practices invalidate the election of a unit that has already showed majority support e.g. through signed union cards, the NLRB will reflexively recognize the union and require the employer to engage in good-faith negotiation. Previously the rule was that NLRB would re-run the election. This change dramatically realigns incentives to favor organizers:
- employers will have to be much more careful about compliance with fair practices, because now instead of gaining an advantage from overstepping they will instead suffer a prejudicial loss
- knock-on effect of this: Union-busting consultancies will over time have to advise extra much more carefully, because a firm that gets a reputation for “losing their clients’ union election by DQ” will ~tank.
- organizers now unambiguously have incentive to report unfair practices. If the best case outcome of reporting was that everyone has to go through the same slog again, that’s a tough call — the old NLRB intervention basically punished everyone, and arguably the company suffered least of all. If the best case outcome is instead that the company forfeits and the organizers automatically win, WOW is that an easy decision.
- knock-on effect of that: NLRB gets lots more opportunities to clearly establish that particular practices are unfair and invalidate the election.
I will update later when I have had a chance to review the decision in full, but provisionally it looks even better than so far advertised because it may reinvigorate the Joy Silk precendent that elections are only an employer’s right on behalf of the employees when the employer has good faith doubts that the union represents a majority of the workforce.
UPDATE: This decision does not go so far as fully reinstating the strong language of the old Joy Silk precedent (1950). (Joy Silk essentially held that the employer had a right on behalf of the employees to call for election when the employer has good faith doubts that the union represents a majority of the workforce, ie if the employer has no honest doubt the employees want the union then there must be no election.) However, Joy Silk has been dead for decades in favor of Linden Lumber, which held essentially that an employer can always insist on a successful (majority) election before bargaining, because an election is the only evidence for majority support that imposes a duty to negotiate, That is directly overruled.
Today’s ruling actually affirms employers’ right to call for election. However, this right exists in a balance with the obligation to bargain in good faith, which is necessary to vindicate the employee’s right to representation. The finding that fair practice rules around the election balance worker and employer rights, so that an employer who violates the rules has upset the good faith process and restoring that balance requires the employer to forfeit their right to dispute the representativeness of the union, is clearly a huge step forward. Now is a great time for that — a mass of brave retail workers in chain stores like Starbucks (etc) are doing organizing work now, and this will give them a much better chance to win representation.
There is always risk in administrative/executive actions, that our current SCotUS will retrench against the win. That would be very foul, but there’s no need to borrow trouble. Today’s ruling took reasonable steps to hedge against that, by backing away from reliance on the SCotUS ruling in NLRB v Gissel Packing (1969), which focused on attempting to predict about how hard it would be to re-run the election fairly. That judgement is speculative, and easy for courts to second-guess. Instead of focusing on fair reruns, this ruling focuses on incentivizing fairness in the initial election, which is core authority of the NLRB as agency overseeing that election. So today let’s celebrate the win. Have some good union music, recorded by good union workers.
Background of the case:
The organizing workforce at Cemex is drivers and driving trainers for the fleet of ready-mix cement trucks. They tried to organize across 20+ cites around Las Vegas, NV and SoCal with the Teamsters (a brotherhood of drivers reaching so far back that the name refers to the founding members who managed teams of horses pulling wagons), ultimately gathering authorization cards from 57% of the drivers in the proposed unit. However, but lost a very close election 4 years ago: 48% of ballots favored the union. Teamsters alleged unfair practices including threats before the election of closures/layoffs and other retaliations should the union win, and various interference with organizing activities in the run-up (typical union busting playbook, basically, managed by consultation with the Labor Relations Institute). Trial affirmed the unfair practices, and assigned extraordinary remedies including ~captive meetings reading aloud the corrective order(?) in prelude to a new election, but did not direct Cemex to bargain with the Teamsters.
Decision:
The NLRB is a 5-seat agency, but there are currently only 4 members: Chairperson Lauren McFerran, and commissioners Marvin Kaplan, Gwynne Wilcox, and David Prouty. McFerran, Wilcox, and Prouty have promulgated the new standard; Kaplan affirmed the judgement but dissented from elaboration of the new paradigm.
The NLRA, as amended by the Taft-Hartley legislation, gives employers a right to petition for election by secret ballot (as opposed to the open ballot-equivalent of signed cards) in section 9. This is in tension with their section 8 duty to negotiate in good faith with a majority representative of the workforce. The new rule is an accommodation between these that essentially says the employer’s right to see clearer proof of majority support is forfeited if, by frustrating the election with illegal practices, the employer shows that good faith verification is not the operating motive. The decision emphasizes that part of good faith is asking for and facilitating the election in an expedient fashion, because part of employees’ representation right is that the representation be timely — no dragging the process out for years as staff turnover and momentum stalls. Timeliness is further supported by the Board’s action yesterday finalizing a reversion to Obama-era election rules that expedite elections and hearings. (Trump’s Board had changed the rules in 2019, but some parts of that code have since been struck by a panel of the DC Appeals Circuit, so a revision was bureaucratically needed to restore coherency, even aside from the policy merits.)
The legal standard to file for election is 30% support by signed cards. Today’s reasoning relies on the union showing a majority of cards before the election, so the 30% standard is further diminished. However in practice, 50% is almost always treated as an essential target already, and so there is little change. The rule does relieve unions of some administrative burden, in that the employer must petition promptly for election (or negotiate voluntarily), lest NLRB find a violation of the section 8 duty to negotiate in good faith. Previously the employer could simply delay taking any action, and it fell to the union to petition for election in a reasonable timeframe.
The ruling carefully defends the application of this principle to all pending cases as well as future ones: The commissioners say that employers cannot claim to be treated unjustly here because the only change is how their illegal activities are punished once the election gets thrown out, not which activities are illegal. This interacts further with the reasoning in the final paragraph rebutting the ‘good faith standard’ charge: employers may have wrongly assumed that their illegal activities would result in getting another election, but it’s hardly unjust for NLRB to stop wasting peoples’ time with iterated unfair elections and fall back on the pre-existing evidence of majority support.
Dissent and Majority Rebuttal:
The dissent says the precedential issue is not ripe because the order to bargain could be justified without overruling Linden Lumber. However this is an administrative agency not a constitutional court, limiting scope is not a required procedure. IOW, thanks to General Counsel Jennifer Abruzzo
The dissent says that the SCotUS affirmation of the NLRB holding in Linden Lumber means that precedent must be extended. However this is a basic mistake of modal logic operators: the bare 5-justice SCotUS majority argued essentially an application of what we now call Chevron deference, that the text of the NLRA allows the Board to interpret the law that way, not that it is required to do so. Furthermore, it’s not that there was dispute between ‘requires’ and ‘allows’: the 4 dissenting justices would have found that the text forbade that interpretation, and required employers to negotiate when there was reasonable evidence, such as signed cards, showing majority support for the union.
The dissent says this is a revival of the Joy Silk ‘good faith’ standard which required unworkable inquiry into subjective motivations. However, (notwithstanding any erroneous references I may have made up above), good faith is actually irrelevant. Section 8 requires bargaining with the majority supported unit. Section 9 allows a fair secret-ballot test of that majority support. Various provisions forbid unfair practices. So employers may postpone their section 8 duty by asking for and facilitating a fair secret ballot test, but if they don’t ask for that or undermine it, then the existing evidence of majority support is the best available evidence and it triggers the section 8 duty.
Poll