Employers' "worst nightmare" has just occurred in the Cemex Construction National Labor Relations Board (NLRB) ruling on August 25, 2023. In that ruling, the NLRB necessitates an NLRB order requiring the employer to recognize and bargain with the union, assuming the union can show a majority of employees have signed union authorization cards or otherwise indicated desire for union representation. The result is almost the same as the "card-check" legislation, such as in the PRO Act, that Congress has repeatedly rejected. It is also in spite of the United States - Mexico - Canada agreement, confirming the right to a "secret ballot vote" for union representation in Mexico, which passed by overwhelming bipartisan majorities in Congress. It is hard to believe that secret ballot elections are required in Mexico, but not in the U.S.
The dissenting NLRB member in the Cemex Construction case states that it is "virtually impossible" for a bargaining order not to issue, particularly in light of the hard position taken by the NLRB General Counsel against ordinary employer work rules, against non-competition agreements, and against mandatory meetings by employers about the pros and cons of unionization and/or the voting process in a secret ballot election.
Admittedly, this ruling is going to be contested in the courts, and litigation may take several years. In the meantime, employers are confronted with a dilemma. It is very difficult if not impossible to go through a union organizational campaign without some type of minor unfair labor practice being committed, particularly if the union is looking for every opportunity to file unfair labor practice charges. While the union must still prove its majority in litigation, the employer may be faced with a choice of recognizing the union or expensive litigation.
There are also requirements in the Cemex Construction ruling as to when and how an employer should respond to a union demand for recognition, including the employer's own filing of an RM election petition within two weeks (unless the union has already filed an election petition).
The problem for employers is magnified by the fact that union organizational campaigns are often conducted in secret, and in some cases the employers do not even know such a campaign in underway until it receives a petition from the union. Unions commonly do not take action until a majority of eligible voters have signed union authorization cards or some other evidence of majority status. Employers are then confronted with the litigation dilemma outlined above, or the "quickie" election procedures outlined in the next article.
In either case, employers must be prepared, and hopefully have put into place a good communications program addressing employee complaints, and prior education of the workforce about issues of unionization and the significance of signing a union authorization card. This author has written some papers of the implications of the Cemex Construction ruling and appropriate employer strategy going forward which is available free of charge at jww@wimlaw.com.
This article is part of our October 2023 Newsletter.
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