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How Employers Can Avoid Forced Unionization Through the New NLRB Card-Check Case

On August 25, 2023, the NLRB issued an extremely important ruling basically forcing a union on employers who have committed any unfair labor practices. An employer’s only defense is that it did not commit any unfair labor practices, and/or the union could not prove it had signed authorization cards from a majority of eligible voters. This ruling will send “shock waves” through the employer community. This webinar addressed what employers can do under these circumstances.

The topics covered include:

  • What does the ruling require employers to do?
  • What employers should do when faced with union organizing efforts in their facility or community?
  • What special strategy is available to lessen the chances of “forced” unionization?
  • What the new ruling has to do with handbook revision.
  • What employers need to be doing now.

Articles About the CEMEX Construction Case

Watch This Webinar

Webinar Transcript

J. Larry Stine (00:01):
Well, hello everybody. This is Larry Stine Wimberly and Lawson. Welcome to our discussion on N L R B and the Cemex decision. This is Jim Wimberly. Jim has been working in the board area for several decades. I won't say how many decades, but a lot and is one of the most knowledgeable people in the country about the N R B. And we want to go in discussions and start with a question to him, and then Jim will tell us what's going on with the N L R B and Cemex. So everybody's concerned about this new card check case, right? Cemex, what does this case mean, Joe?

James W. Wimberly (01:35):
Well, let

J. Larry Stine (01:36):

James W. Wimberly (01:37):
Hopefully the only calm part of my presentation tell you what the case says. I'll probably get more emotional and <laugh> as afterwards. But what this case says, it's an N L R B ruling that just came down the last, in the last month or so. It says that once a union ask an employer to recognize the union, the employer, the employer must file a petition with a labor board asking for an election. And if the employer commits any unfair labor practice that would warrant setting aside of a secret ballot election, the employer will be obligated to recognize and bargain with the union on a contract. Provided the union can show it possessed a majority of supporters in an, that is the holding of the cash.

James W. Wimberly (03:05):
Let's kind of break it down a little bit because I've just given the holding once. Unions always request recognition in the past, at least I say always, almost always before they file a petition for an election. Historically, unions always file petitions for elections, not employers, except possibly a decertification election, which is to vote a union out. But in a situation where a union's trying to get in, in the past, it's always been virtually always the unions that filed the election petition asking the Labor Board to come in and conduct a secret filed election. The Cemex decision first sentence. Now, the obligation of the employer filed this petition. Now, that's not all bad. I I don't really have any with that part of the case as far as a result. The bad part is that if the employer doesn't file the election petition within two weeks or commits any unfair labor practice that would warrant setting aside of an election.

James W. Wimberly (04:26):
And I'm gonna talk about what that means later. The union is forced on the employer and the workforce provided the union shows in the unfair labor practice proceeding that a majority of employees in an appropriate unit want. The union now is the part I start getting emotional since the union has to show that it represents the majority. This is why I call it the card check case. And a second reason I call it the card check case, is because the unions have a wishlist of things they would like to see happen in labor relations law. It's called the PRO Act, and it has about 25 different elements of everything unions have ever wanted. But the most ones, one was the card check concept and the proponents of this PRO Act, and it was co-sponsored by 47 Democratic Senators not supported, co-sponsored by 47 Democratic senators. It could never pass Congress. So, so what the Labor Board has done in this ruling has by ruling in a two to one board case two members for this case, one dissenting member put into the law this car check concept that never passed Congress. That's what the case holds.

J. Larry Stine (06:21):
Okay. So is there any precedence on what B L R B is doing in this Cemex case?

James W. Wimberly (06:27):
Well that's a good question because did this case come off the wall without any historical support? Or is there anything like it that's ever been done in the past? Well, let me answer that question this way. Number one, there is some concept like it in the past. It came from a Supreme Court ruling in the Gisel case. Keep in mind the Labor Act says that there will be a secret ballot election. That's the method set forth in the statute for recognizing and bargaining with the union. But under the Supreme Court ruling in Gisel that came down probably 35 years ago, if an employer during a union effort to get in, commits such egregious, unfair labor practices, outrageous that a fair election could not be held, then it was possible for the union to be forced on the employer and the employees. But that was only when the unfair labor practices were so egregious, outrageous that a fair election couldn't be held.

J. Larry Stine (07:58):
So what's the distinction between the Gisel and the Cmax?

James W. Wimberly (08:02):
The good question. The distinction between the Gisel concept, which has been on the books for, as I say, 35 plus years, and the Cmax case is, the Cmax case does the same thing as Gisel. But in a situation where any unfair labor practice is committed that would warrant setting aside an election.

J. Larry Stine (08:28):
But Jim, the basis of Gisel was that it made a secret ballot that's in the act, basically untenable. Does Cemex, how does Cemex get to the point where it's just any labor violation?

James W. Wimberly (08:43):
Well, I'm gonna dodge that question for a second. <Laugh>. Okay. And I wanna emphasize the point of any unfair labor practice it warrant setting aside election, that doesn't take much under the current position of the N L R P General counsel. An employer can't hold captive audience meetings. A captive audience meetings is kind of a union term they like to call it when an employer calls a meeting of employees to explain to 'em the company's position on unions or even answer questions, right? So if an employer does that in a union campaign, presumably that would warrant this bargaining order 'cause that would be a, an unfair labor practice, and they would have no problem saying that would be objection number two. The, the second most common thing for an employer to do in a union campaign is to have supervisors or a manager go around and speak to each employee on the job. I call 'em one-on-ones. The general counsel of the Labor Board takes a position that that's an unfair labor practice. What about work rules?

James W. Wimberly (10:03):
The dissent in the Cemex case, the one Republican on the N L R B said that it is impossible for this doctrine not to result in a union being forced on an employer and the employees in every campaign because the Labor Board now takes such a broad view of what an unfair labor practice is. An example is a recent case. It was admittedly just an administrative law judge case. I wish I could quote to you exactly what the the, the, the rule was. But essentially said employees should respect each other and not say anything to the others that would cause a, a disruptive environment. It was a work room to that effect. The key word was employees should respect each other and not do anything iris disrespectful to each other. The Labor Board says that was an unfair labor practice because it could kill an employee union supporters approaching another employee saying, you ought to support the union. You ought to sign a union card. We really need this union here. And the Labor Board said, so that's another, it'd just be a simple work. And I can assure you in any set of company policies like an employee handbook, I will bet you 99% of 'em have some rule in there that the Labor Board would consider overroad because it might be construed by somebody working there as impinging on their union or protected activities. A simple example, walking off the job

Speaker 3 (12:09):
Every the road,

James W. Wimberly (12:12):
Why employees have a right to strike. Somebody might interpret a rule walking off the job as impinging on or chilling their right to engage in a concerted work stoppage even without a union. So the dissent in this opinion says that a union can always find some unfair labor practice that an employer has committed. Now, let's get back to your question. I forget what it was. You

J. Larry Stine (12:43):
Remember? Yeah, I do remember the question. The question is that in Gisel it said that basically the basis of the Supreme Court decision was the practice of so egregious you couldn't get a fair secret ballot election. It doesn't sound like Cmax has any logic related to an UN making it untenable to have a secret ballot election.

James W. Wimberly (13:03):
Okay. I think Larry is in essence asking me to defend the logic of Cemex, how it could have happened.

J. Larry Stine (13:13):
I'm not asking you to defend it. I'm asking you to explain, explain it.

Speaker 3 (13:17):
I don't even think, I personally

J. Larry Stine (13:18):
Don't think it's defensible, but okay,

James W. Wimberly (13:20):
Lemme just put it to you this way. And this is the emotional part. I've been practicing labor and employment law for longer than I wanna admit to. And I have never seen anything like the current N L R B in my career, not only at the N L R B, but at any federal agency. The

Speaker 3 (13:44):

James W. Wimberly (13:45):

J. Larry Stine (13:45):

James W. Wimberly (13:46):
On the basis that he was gonna be the most pro-union president in history. To that end, he appointed all union lawyers to the N L R B. He appointed a union lawyer as the chief prosecutor. And this chief prosecutor is a person who's has the authority to set labor policy for the country and to prosecute employers on what she thinks ought to be an unfair labor practice.

J. Larry Stine (14:21):
But Jim, what, what, what is the impact You're talking about these general counsel members, and I've been looking at 'em and some of 'em are really extreme, but there, there's still the opinion of the prosecutor. Basically, what legal effects do her memos have without some decisions affirming?

James W. Wimberly (14:42):
Well, Larry is right in one sense that the prosecutor's opinion is no different than a a federal criminal prosecutor's opinion. You know, there still has to be a finding of guilt or an unfair labor practice. And all that's true. The problem is, first, the regional offices that apply this law have

Speaker 4 (15:06):
To follow,

James W. Wimberly (15:07):
Often follow what the prosecutor says.

Speaker 4 (15:11):
Don't they kinda, and they bring, they kind have to, don't they?

James W. Wimberly (15:14):
Well she's their boss. Sometimes she gives 'em discretion not to,

Speaker 4 (15:18):

James W. Wimberly (15:19):
But but they unless they've given, been given discretion not to, they usually do follow her right policies even though they hadn't been upheld by the board.

Speaker 4 (15:30):

James W. Wimberly (15:31):
And this means that an employer, for example, if I get hit with a union election petition, I'm gonna call a meeting of employees. I'm gonna be prosecuted for doing that if I hadn't followed the right procedures. There is a way to get around that problem. But that's beyond the scope of this meeting or function today. But you're right, you face litigation and, and lots of problems. Now, obviously, Larry thinks, and I think that this case is awful most considerate, the most important N L R B case in over 50 years. It takes a, a proposal in Congress that never had the votes to pass, and they just put it into effect in a ruling. So I think it's, it's outrageous. Now, some of you may think I'm exaggerating this. Let me tell you an article that came out yesterday that I've got in my hand, published by Bloomberg Law, the head of the National Labor Relations Boards, St. Louis Regional Office mismanaged a union election at Starbucks Corp Store in Kansas. According to the nlrbs Inspector General, this is the impartial ethics official that looks at what the federal agencies do to make sure they're legitimate.

James W. Wimberly (17:10):
The regional director of the nlrbs failure to properly supervise and manage the mail ballot election to take reasonable steps to address issues as they arose, created the risk of great reputational harm that could hurt the nlrbs ability to conduct neutral elections. Inspector General David Barry said in a report release Wednesday, that's Wednesday of this week, now you might say, what was the N L R B doing out there? My recollection is what they were doing, they were giving the union, not the employer, N L R B officials updates on what people had voted and what people had not voted and made special arrangements for late voters to come in and vote even after the deadlines. So it's not that they stuffed the ballot box, but they gave the union confidential secret information and enabled the union to bring in union supporters and to push union supporters to come in and vote even after the eligibility periods expired.

James W. Wimberly (18:26):
One reason we know about this is one person in that N L R B office was a whistleblower and said, this ain't right. And he reported it. And, and Inspector General investigated. So if this sort of thing is going on in the name of promoting unions, which the administration feels is good public po public policy to support unions, excuse me for throwing in this, but President Biden is the first president in US History to appear on a picket line. He urged the strikers to stay out. And this is the the auto strikers stay out, stick with it, get that 40% increase. You heard me right? 40% increase. By the way, the union had dropped its demand at that time to 36%, but he told 'em how to stick out for 40%. And the contract they're seeking will result in an auto worker, average auto worker making 130,000 or 170,000 with benefits.

J. Larry Stine (19:42):
How many hours?

James W. Wimberly (19:44):
Well, how many hours? I can't answer that, but I assume it's a 40 hour week. No, they're asking, they're demanding a 35 hour. Yeah.

J. Larry Stine (19:52):
So let's, let's get back to the Cemex. Is this gonna be the law of the land or will it be the appeal? And what would happen on the appeal?

James W. Wimberly (20:02):
Okay, obviously this case is gonna be appealed. And I believe this is gonna be a long drawn out process before we ultimately load know what the law of the land is gonna be. And it is the number of years that may be involved, not much years before it's finally known whether this becomes the law of the land. I'm thinking well over three years and the four or five year range. Now. Now why I say that first there has to be an N L R B decision and that takes time. 'cause There's a trial and there's an appeal from an administrative law judge to the Labor Board in Washington. Next, there has to be an, an appeal to a circuit court of appeals. And even though this concept Larry seems outrageous, I think it's debatable what the ultimate results gonna be. By debatable it's pretty close to 55th.

J. Larry Stine (21:17):
Why would that be when the Ann R says that the preferred method is the secret ballot election?

James W. Wimberly (21:24):
Well, because

J. Larry Stine (21:25):
If, like the board is just bypassing the statutory provisions of the secret ballot election,

James W. Wimberly (21:33):
Well how are they getting away with this? Well, first they have the Supreme Court ruling and guess,

J. Larry Stine (21:45):

James W. Wimberly (21:45):
And the only real difference is whether an unfair labor practice is outrageous or

J. Larry Stine (21:52):

James W. Wimberly (21:53):
Simple so they can pigeon and hole on that concept. Secondly, the Labor Act also has provisions allowing the board to set forth procedures. Third, the Labor Act is pretty bare bones. The key of the Labor Act is section seven, which is one sentence long <laugh>, right? And so much of the law comes out of this one sentence. So it allows the board to interpret things and make laws, so to speak, administratively. So I I mean it's outrageous that they're doing this in a board decision where something that Congress has always rejected, but I, I'm not gonna sit here and tell you that the union's position on this or the legal board's position is froze. 'cause They can take that Gisel case and say, this is just an application event.

J. Larry Stine (22:55):
Now, however, the Gisel case talks still relate back to the secret ballot being untenable when it doesn't look like the steam access is even requiring that level of proof. So it's, it's going beyond That's true. And also, it, it sounds like to me, you know, the Supreme Court has had the major question doctrine in the OSHA case where they invalidated the Covid regulation and they invalidated the E P A using the major question doctrine. It sounds like to me the L R B is exceeding its authority when it's basically invalidating the statutory provisions by rules.

James W. Wimberly (23:29):
Larry's throwing all these technical terms at us because he got the vaccine mandates overturned, even at the Supreme Court level. And a lot of these concepts he's mentioned to come from a tax on what's called the administrative state, in which we thought Congress supposed to write laws. But the administrative state concept is that the government agencies like the N L R B make all the laws as they go along. Correct. And that's not right and should be overturned in court. I I'm just saying, Larry, it's legitimate issue. It's not a slam dunk that the decision will be overturned,

J. Larry Stine (24:06):

James W. Wimberly (24:07):
That's all I'm saying.

J. Larry Stine (24:08):
Yeah. But but doesn't the, the Probe Act in Congress, which has been unsuccessful, give the employers ammunition to make that argument.

James W. Wimberly (24:19):
It gives 'em ammunition, but it's far from conclusion. There have been other cases, you probably remember some of 'em more than I can right now, in which something has been introduced in Congress but not passed and yet been applied by judicial interpretation. I agree that that's relevant. It's important. And I I'm just saying that it's not a slam dunk. This case is gonna be overturned at least till another administration comes in. I'd say <laugh>, there's a better chance of a, well, anyway, I ain't gonna go that far.

J. Larry Stine (24:57):
Well, something, well, basically what happens is, during different administrations, Republican and Democrats, the board's composition changes substantially.

James W. Wimberly (25:06):
That's right. The administer, well, first of all, board members are appointed to set terms four years. And after that term you know, they can be reappointed or replaced by someone the president chooses. And it's a longstanding pressor not written in the law

J. Larry Stine (25:32):
Tradition press

James W. Wimberly (25:34):
That the, a tradition that's always been respected by Republicans and Democrats alike, that the President gets to appoint three members to the board from his own party. And the party that's not in power in the presidency gets to choose. Or actually they have to be approved by the Senate. But the minority party in not empowering the presidency gets to a 0.2. So the President is always able to appoint three of the five members of the N L R V. Right this minute we have three Democrats and one Republican on the board.

J. Larry Stine (26:16):
Until such time as the administration change, it's gonna remain that way.

James W. Wimberly (26:20):
Yeah. The, I I will say this, and and this isn't, didn't start with the Biden administration. The Labor Board has always changed significantly based on whether there was a Republican or Democratic president. This has been this way for a long time. And also, many say the Trump presidency changed many precedents in favor of employers. And that's true. The difference in these things, the current general counsel's doing is she's changing the law on major issues that have been one way for 50 or 60 years. I mean, employers have always had the right to call a meeting of employees,

J. Larry Stine (27:11):
Right. Discuss things. Right.

James W. Wimberly (27:13):
Or talk to 'em one-on-one on the floor. She says it's no good anymore. She says common sense work rules like walking off the job, okay, harassment, let's take another lawyer has a rule. You cannot harass other employees,

J. Larry Stine (27:30):
Which is almost dictated by illegal

James W. Wimberly (27:32):
Labor Board says that's illegal, right? You gotta be very specific to refer to harassment based on race, X Age national origin, E T C, because

J. Larry Stine (27:43):
This, it, this, to me, it sounds familiar, and I'm not the board expert guys. He is to that, that that series of cases they had when the last Democratic Administration was in about arbitrations was being a violation of the board. And it went through all the courts and the board lost those deceased.

James W. Wimberly (28:00):
That's true. Larry's making a point about individual arbitration agreements. The Democratic board took the position that that was a waiver of the right to engage in concerted activity of going to court for some into arbitration. And they lost that case largely 'cause of Federal Arbitration Act. But I'm only saying that the kind of precedents the N L R B is reversing now are real important issues that have been one way for over 50 years. And then now all of a sudden they're different.

J. Larry Stine (28:37):
But Jim, while we wait to see what happens to the Cemex decision, which can take three plus years, yeah. Just to go through the appellate procedure and probably the Supreme Court, what is the practical impact to the people listening now as to what they're gonna be doing for the time being?

James W. Wimberly (28:56):
Well the goal of the administration is to expand unionization of the American workforce. They believe that's good public policy. I mean, this is new. I think Franklin Roosevelt had the same concept in the thirties. The difference now is that it's being done with so much force and on such important things. You know, speaking of the secret ballot election, our American Congress voted almost unanimously to require it is called a Canadian American Mexico treaty to require secret ballot elections in Mexico. So Mexican workers have more rights to vote by secret ballot than workers in the United States. So what are the ramifications of this? Number one let me explain to you the nature of a union campaign. Unions try to keep campaigns quiet as long as possible. Secret being underground, whatever you wanna call it, because they want to be the ones to educate or indoctrinate, whatever you wanna call it, the workers, as to the advantages of unionism.

James W. Wimberly (30:33):
And they know what's, the employer finds out what's going on. The employer's gonna speak out and maybe change people's lives. And at the same time, this case came out the day before the Biden administration or Biden, N L r b, put in a new regulation that once a union files an election petition just under the election rules, the employer may have as little as 14 days before the vote is held. Yeah, more likely be around 20, but could be as little as 14. So you know, and, and by the way I'm getting carried away here. I told you I'd get emotional unions can make promises in union campaigns. Common promise. Your employers underpaying you, their bosses are making all this money. The executive makes tons of money. You get a union in here, it won't cost you a dime until we sign a contract with the employer with massive pay increases of 40%, like Biden says, the auto workers ought to get.

James W. Wimberly (31:51):
Now that's 40% over four years. I'll say that. Not 40% the first year. And we'll get grievance procedure. We'll get rid of your supervisors you don't like. We'll force an employee to arbitrate before a judge. Anytime anybody gets fired, disciplined, they can make all kind of promises. Employer can't make promises if the employer says, Hey, you keep the union out. I believe we're better chance of being able to position, to give a raise in the future. What an unfair labor practice one of the worst employer can commit. So the, the deck is stacked against employer. So knowing the deck is stacked against employers up front, what can employer do to remain union free? They gotta think long term. And you know, I'm gonna just outline five basic elements of thinking long term. Number one the employer needs to let its position or explanation of its union free policies known to the workforce. Best place to do that is an orientation procedure.

James W. Wimberly (33:02):
Sit down with a new hire and say, I want you to know we're a union free company. It's our policy. No one has to pay union dues in order to work here. You don't have to go out on a strike or anything like that. We solve problems directly and quickly and we'd like to keep it that way. Do you understand what I've said? Do you have any questions? If anytime any problems like this come up, feel free to ask us if you have any questions or we can be of assistance. I mean, it, it's a little more than that. That's it. Orientation number two, what kind of complaint procedure do you have?

James W. Wimberly (33:42):
Employees are gonna have complaints. Some of 'em are serious, some of 'em are widespread. Some of 'em are fri frivolous. But you've got to have an outlet for those complaints. I'm gonna tell you i I think it's my first war story. It's about a trucking company called Overnight Transportation. I don't even know if they're still in existence. Don't either. But at one time, the entire long-term trucking industry was union by the Teamsters. There's only one big trucking company that wasn't union overnight. I wondered myself how overnight could remain union free in the face of its comp competitors being union. And my investigation revealed that the owner of Owner Knife had a reputation of always being available for any trucker going to come to him with a complaint or a problem. He was accessible, he would listen and he would respond. And that reputation kept overnight, union free.

James W. Wimberly (34:47):
So now every company says they've got complaint procedures. We've got open door policy. I always ask the next question, when was the last application that open door policy? So you, you gotta have a, now there, there are ways to keep up with what's going on in the workforce. I'm a big fan of what's called employee round tables, where once a month, once a quarter, you select a group of cross-section of employees across the plant. You bring 'em into a meeting, maybe you serve 'em donuts or something. And you say, this is what's going on in the company right now. We're vital interested in your views and and welfare and do you have any questions or there anything we need to know about that we can help you do your job better? Usually they say things that'll help the company work better.

James W. Wimberly (35:46):
It's not a costly thing to do. It's cheap. So next thing Union said, you gotta have a contract to protect your rights. Our answer to the union contract is a handbook. Handbooks are good right now. They make be bad because I'll bet you of those listening to this call they're not 10% of you that don't have some rule of policy in your handbook or policy manual that the current N L R B would say is unlawful. So I've covered, I don't even know if there are five, the orientation, the complaint procedure, the outlet to find out about concerns of employees handbooks. That's four, isn't it? Alright,

J. Larry Stine (36:39):
It's not five

James W. Wimberly (36:41):
<Laugh>. Alright. But there, there you got an idea of the kind of things we should be doing now,

J. Larry Stine (36:46):
Right? And, and going back to the handbook, if the harassment policy is a, an issue, we're mandated by Title seven and Supreme Court decision to have that, to protect them from race harassment and sex harassment cases to have that type of policy in place. Well,

James W. Wimberly (37:02):
Let me have a little fun with Larry.

J. Larry Stine (37:04):

James W. Wimberly (37:06):
Actually I'm in the process of reading, I'm about halfway through. It's well over a hundred pages, maybe 150. The new E E O C guidelines are last and they have about 12 items or concepts, and I didn't count 'em, but it's roughly 12 that they want to see in every harassment policy. But when you get to the point of the specifics, they say, you need to make clear that there will be no harassment or disparate treatment on the basis of race, sex, age, national origin, et cetera. They don't say, your policies should say there should be no harassment. So the devil is in the details, but I know what you're saying. This created such a controversy that the E E O C and the LRB traded a joint committee to try to work out their differences. Right?

J. Larry Stine (38:09):
You know

James W. Wimberly (38:09):
What? Right?

J. Larry Stine (38:10):

James W. Wimberly (38:10):
Never sell <laugh>. I am not

J. Larry Stine (38:14):

J. Larry Stine (38:15):
There are two different futile kingdoms. The E O C futile Kingdom and the National Labor Relations Board, futal Kingdom, the way the government works, I mean, in in addition, I mean negligent hiring and negligent retentions almost mandates that we know about other types of just bullying for no good reason. Where somebody's bullying somebody not because of anything other than they just happen to dislike the other person. Because if we allow that to go on, we are facing the possibility of a negligent retention case. So the policies designed to handle state and federal law, this is where when you have these federal agencies, that the way I explain it and I've told it to people all along, is when the employer's out there, we give 'em a telescope and they get to take the telescope and they get to city OSHA star or the N L R B star or the E E O C star.

J. Larry Stine (39:09):
But when a investigator comes in from one, any one of those investigations, he walks in with a microscope. And that's the difference between the federal agency because that investigator only has one thing about his life. If he's from the E O C, he's there to enforce the discrimination laws they've got. And the only thing he looks at, if an OSHA guy comes in just the o reg doing the same thing for the L rv, they're walking in with microscopes and our guys are trying to look at the universe, the telescopes. And that's kind of the way the federal government tends to work. And it just happens in every agency. So, so what, what is it that we should be doing today on this handling the unionization with the c next decision while it's, while it's pending beyond what you've talked, is there anything else beyond what you've talked about?

James W. Wimberly (40:03):
Well I I gave you four points that I thought we used to call it preventative maintenance programs of union free status to to consider and implement there. They're more than that. I just gave you the, the foremost basics. 

J. Larry Stine (40:27):
But Jim, I, Jim, I, I guess what I'm really asking is not those rules strategy. We, I, no, I, let's say I've got a union in now I know in the past, 'cause I don't do it, but I've listened to you and all the others have handled it is, but we're gonna go in and have a conference, we're gonna do one-on-ones. We're gonna hand do handouts. How are we gonna ha how are y'all gonna handle that when the union has pocket its its head up in the,

James W. Wimberly (40:50):
Okay, okay. That's what the, alright. Yeah. Let, lemme say this. There has never been in my career greater emphasis and necessity of formulating strategy. And I'm just gonna give you some examples of, of strategy number one very early or immediately in any union campaign, one of the things we always do is to explain the significance of signing a union card. And of

J. Larry Stine (41:29):
Course, the

James W. Wimberly (41:30):
Big change now

J. Larry Stine (41:33):

James W. Wimberly (41:33):
Presumably we'll be able to explain. Now, signing one of these cards can force the union on you and on your coworkers without you ever getting a vote. And I'm sure we'll be saying, if you wanna give everybody a chance to make a decision, make sure you only sign something that says, this is only signed to seek a secret ballot election. Second <laugh>, this is controversial, but believe me, this is gonna be a big part of the strategy. There're gonna be counter signings and counter petitions, <laugh>, and these may go on through the whole campaign because you are trying to de deter the union, gain support and make the union look outrageous and evil for trying to force a union on without even a right to vote. So the employer has to be very careful how they do this. Incredibly careful, particularly in light of the current N L R B.

James W. Wimberly (43:01):
But employers will probably try to find a way to legally support a counter petition that says we, the employees of such and such company believe that the question of whether we have a union is important enough that everyone have the right to vote by secret ballot. Therefore any document that I previously signed indicating that I was joining a union is now revoked. And I feel that any such issue should be resolved by secret ballot, which is the American way of doing things. Now, management may not be able to go out and do this in that manner because it may be construed and interfering with employees' rights to make these kind of decisions themselves. So there's gonna be all kind of strategic ways to counter these things. And I've been involved in some of these cases. I have defended some gisel cases. One the ones that I've defended because another thing these, how's the union gonna show that they have a majority? Are employees gonna have to testify before the N L R B? Do we have the right to tell 'em that they may have to testify before the N L R B if they sign a card designating the union as their representative in one of these unfair labor practice cases like Cemex,

Speaker 5 (44:39):

James W. Wimberly (44:39):
By the way, it doesn't matter if the company won the election. Same principle applies. We've got two situations going on right now. They're well known. One in Georgia, Athens, Georgia, where the employer won the election. But there's an unfair labor practice proceeding to force the union on the employer in spite of the election under the Cmax concept. So there's gonna be campaigns, counter campaigns, what the say did, can the employer tell the employees that they might have to testify in a public hearing before the N L R B if they sign one of these cards under some administrations? You could say that Others, I'm sure that Biden, N L R B would say that intimidates employees not to sign a union card. But I've always said in labor law, you know, Larry made some broad statements. I'm gonna make a broad statement. I'm really proud of.

James W. Wimberly (45:39):
I made it many times before. It's not new. The, you can do almost anything you want do in labor law if you follow the right procedures. So everything that I've said that might be a counter to all this during the union campaign, I mean, first thing employers gotta do if a petition's filed no. Number one, I'm sorry. If a union makes a demand for election, not a petition, employer's gotta be in a position, position to petition itself within 14 days, two weeks, because that's what the Cemex decision says. Number two, the employer knows it's gonna face an election very quickly if it doesn't, if the petition's not dismissed in an unfair labor practice proceeding. 'cause The employers committed some simple unfair labor practice. By the way, any unfair labor practice is presumed to interfere with an election. Do you hear me? Yeah.

Speaker 5 (46:41):

James W. Wimberly (46:42):
Any unfair labor practice presumed to interfere with an election. So the employer's gotta train it. Supervisors, by the way, there are disclaimers that can be put up. This gets complicated, but I see how much time we've got. We've got a little bit more. I've got one. Let, lemme give you this example. Okay?

James W. Wimberly (47:05):
One of my clients years ago in North Carolina had a union demand for recognition. Listen to how we respond. We said dear union, we would be pleased to recognize your union provided you submit to a card Jack and we agree on a neutral official to determine whether you have a majority. And we'd like to get this done soon because we need to engage in collective bargaining negotiations over our plan. Closing of the plan, <laugh>. Now, the company was gonna close the plan. I knew it. I knew if we fought the union tooth and nail, we were gonna get in a lot of trouble on closing the plant. But going out and recognizing the union, I figured the labor board or union wouldn't have a leg to stand on about the legality of the plant closed. In addition, I knew that supervisors were gonna say, well, you filed that petition.

James W. Wimberly (48:11):
Look what it got you. The plant's closed it. I just knew it was gonna happen, right? No matter how much training. So I posted a notice on the board that essentially said that no supervisor has authority to talk about the circumstances leading for plan, plan, closing. All these questions should be directed to the plan. It said more, but that was the gist of it. The inevitable happened. The union filed charges claim closing was illegal. And and they offered statements that supervisors had made in spite of our best efforts. Oh, we had each supervisor signed something that they wouldn't talk about,

J. Larry Stine (48:54):

James W. Wimberly (48:55):
So we had it posted in the plant had even supervis. So I'm just saying there's never gonna be so much strategy necessary as under this Cemex case and how to handle an election campaign. One consultant has suggested, I thought it was intriguing that I, I wouldn't have thought of it, that the employer react to the demand for recognition with a letter with the signatures majority of the plant, that they didn't want union representation. And if, if there is an issue raised that need to be conduct vote by secret ballot, I wouldn't, I don't, I wouldn't have thought of that. I'm not recommended. That's just an example of the strategy. And by the way, nobody's come up with any strategy yet to deal with this if they have, they hadn't discussed it publicly,

J. Larry Stine (49:55):

James W. Wimberly (49:55):
So I've just given you a taste of some of the issues you're gonna face. And so for that reason many say you need to not only have a non, a union free program on a long-term basis like the four or five points I outlined previously and others, but maybe you need to have a quick action plan. What you're gonna do when a petition's filed, just like when an OSHA inspector, how you're gonna handle that

J. Larry Stine (50:21):
Right now, Jim we've been going for about 50 minutes and we haven't given y'all an opportunity to ask any questions. If you have any questions, you can go down to the bottom of the screen and hit the q a and send us a question. At this point, we'd like to be open to any questions that you would like to ask. So we're going to give you a minute or so to do that and then we'll be glad to respond to it.

James W. Wimberly (50:48):
Can we let 'em ask them verbally too? That a problem? No,

J. Larry Stine (50:52):
That's a problem.

James W. Wimberly (50:53):

J. Larry Stine (50:54):
I would like to do it and I've got one if I can open it up.

James W. Wimberly (50:57):
All right.

J. Larry Stine (50:58):
But it is, hold on, gimme just one second and I'll try it again. I do have one question. If I can, can you recommend a website to learn more about the Cemex case?

James W. Wimberly (51:10):
No but I'll be glad to look around. Let me say that there are a lot of articles out on it. I'm not aware of anybody that's got a website on it. We've got about five articles on it. 

J. Larry Stine (51:31):
So they could go to our webpage and look at those articles they're and look at these articles and you can look at what we've been saying about these, these cases and go from there.

James W. Wimberly (51:44):
Yeah. Okay.

J. Larry Stine (51:47):
Is the transcript of this gonna be available? We will post this webinar on our webpage. We post all the webinars, we've recorded it, and they're all out there. So we, we address monthly some webinar topic, the board OSHA wage and hour employment discrimination. So there's an entire library of webinars that are available on the site. As soon as we can get this recorded, cleaned up a little bit, we will post and you can go look at this webinar, feel free if you know you have more people in your organization who wanna do it to share it, it's out there for the public consumption for y'all to look at and to use as you want to do so on multiple other topics of interests. So you can pick one of the,

James W. Wimberly (52:40):
But I, you know, you're, you're wise to be asking these questions because I don't know how many books have been written on winning union organizational campaigns. And by the way, the best way to win a campaign or election is not to have one, not the way the board wants, but you know what I mean. But with this cemex case the books have gotta be rewritten. I have not seen an article even addressing the strategy I've gone over with you today yet. And I read these daily labor reports every day that are probably a hundred pages long. Nothing out on

J. Larry Stine (53:29):
No, we do not have an office in California, <laugh>. I we, we kid around here oftentimes that there's a laws of the United States and the laws of the Republic of California,

James W. Wimberly (53:42):
But this is federal. So California law and the labor board law is not only federal, but it preempts state and local laws, right?

J. Larry Stine (53:51):
So for, for California, even the n r B decisions and the labor law decisions are the natural Labor Relations Act are and prole even in California. So, but no, we don't have an office in California, but it's, it's something that we can handle nationwide for elections. And we have done so all over the, over the country.

James W. Wimberly (54:12):
But, but I, I wanna add one point I hadn't made. I'm gonna be very brief. I think this decision that has been made to try to help unions, man, they're pertinent and I'll tell you why. It's gonna make every election case arguably a legal case. And rather than have the issues decided by secret ballot, they're gonna be decided in proceedings before the National Labor Relations Board and litigation and litigation can drag on for years.

J. Larry Stine (54:49):
And ultimately they could go to the federal court.

James W. Wimberly (54:52):
Court of appeals aren't appealed,

J. Larry Stine (54:54):
Right? Because the petitions have to be enforced or not enforced by the Court of Appeals. That's right. So now you're in litigation as opposed to having private elections and off we go with the lawyers as opposed to the elections.

James W. Wimberly (55:09):

J. Larry Stine (55:10):
Well, I hope y'all have found this to be a very interesting webinar. I personally have found it and I've learned a lot, but I learned a lot about board law. Every time Jim talks, if there are no more other questions,

James W. Wimberly (55:24):
Give him any last minute questions. Hearing none, <laugh>,

J. Larry Stine (55:30):
Hearing none we will complete this webinar. It is recorded. If you want to use it and use it for other people in your organization, please feel free to,

James W. Wimberly (55:40):
Yeah, I, I, I'll say this, we publish monthly newsletters and then alerts just about any time that are special sent on the occasion. And we're gonna be writing a lot more on these concepts. So stay tuned. Yeah

J. Larry Stine (55:58):
It's been a very busy year 'cause the democratic administrations tend to be very busy and issuing regulations and impacting employment laws. On this meeting, we send out alerts and newsletters, so that's a resource available to you also. Well, thank y'all so much. Hope you enjoyed it, and thank you. Bye.

webinar promo graphic: avoid forced unionization card
Webinar Date: Friday, October 06, 2023
Start Time: 12:00 PM
End Time: 12:45 PM
Presenter(s): James W. Wimberly & J. Larry Stine
Jim Wimberly
Larry Stine
Status: Available On-Demand
Venue: Zoom

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