The National Labor Relations Board’s (NLRB) landmark decision in the Cemex Construction Materials Pacific, LLC case, issued on August 25, signifies an attempt by its current leadership to turn around long-declining union membership in the private-sector workforce. If the NLRB’s opinion withstands legal challenge, it will overturn decades of legal precedent that governs the process of union recognition. As the NLRB prepares to set precedents with high-profile targets like Starbucks, it’s crucial for all employers to reassess their strategies for union avoidance and adopt more proactive measures. That said, the practical impacts of Cemex may be different than what the NLRB’s current leadership had intended.
‘Cemex’in Context
Cemex is unquestionably a sharp change to well-established legal thinking. Traditionally, the NLRB supported secret-ballot elections as the standard method for a union’s certification as the bargaining representative. In this framework, employers could voice concerns about unions before a secret-ballot election without necessarily breaching the National Labor Relations Act (NLRA). They had the choice to either voluntarily recognize a union based on employee support or request a secret-ballot election overseen by the NLRB. Not filing for NLRB relief while insisting on a secret-ballot election did not constitute a violation of Section 8(a)(5) of the NLRA. A union would be certified for collective bargaining if it gained majority support from employees. In situations where employers committed unfair labor practices (ULPs), the NLRB could either rerun the election or, in more severe cases, issue an order to recognize the union and begin immediate negotiations.
The Cemex decision turns the old process upside down. Now, if a union requests voluntary recognition supported by a majority through union authorization cards, employers must recognize and negotiate with the union or submit a Representation-Management Petition (RM petition) within two weeks to commence a secret-ballot election. Failing to respond appropriately to a union’s demand can lead to a ULP charge, and the NLRB may issue a bargaining order unless the employer can demonstrate in the ULP proceedings that the union lacks majority support or the proposed bargaining unit is inappropriate. Moreover, employers may face additional liabilities for any changes they implement in mandatory employment terms following a union’s recognition demand. This all appears to be to the advantage of a union organizer, and the anticipated jump in RM petitions has materialized: In the 90 days prior to the Cemex ruling, only four such petitions were filed; in the 90 days post-Cemex,118.
Despite initial reports, Cemex creates complications for labor organizers that may keep it from being the preferred route toward certification in every situation. From the outset, Cemex will be subject to challenge before a federal court of appeals and thereafter may be overturned by subsequent NLRB appointees with a less union-friendly bent. Furthermore, unions realize that a Cemex demand gives an employer more time to respond to the union’s demand for recognition. With two weeks to file an RM petition followed by a full NLRB election process, it could be months before a vote is cast. Moreover, the uncharted waters of the Cemex process present more opportunities for an employer’s legal challenge. When put into practice with the limitless combinations of job categories, supervisory duties and bargaining unit groupings, the Cemexdecision leaves more practical questions than answers once a process gets underway. This lack of clarity has given some unions pause to strategically consider next steps before they charge ahead into an unknown legal landscape.
What to Expect After ‘Cemex’: More ULPs During Union Campaigns
The real change brought by Cemex for employers may be the impact that a relatively minor union ULP charge can have on the outcome of a secret-ballot union vote. In Cemex, the NLRB suggested that even a single technical ULP could result in a finding that the company has unlawfully refused to recognize a union. The NLRB’s general counsel, Jennifer Abruzzo, further clarified these standards in a Nov. 3 memo, stating that an RM petition election process would be set aside if an employer’s ULPs during the critical period invalidate the process, making a fair reflection of employee choice impossible. This means that even one allegation of arguably improper conduct could cancel a vote and lead to a bargaining order if the union has majority card support.
For example, on Sept. 21, the NLRB issued its inaugural Cemex bargaining order against a Massachusetts cannabis dispensary operator after its employees voted 17 to 11 against joining a union. Even though the union lost the vote, the NLRB will ignore the results and force union representation because of the company’s alleged violation of certain rules around the union organizing campaign which made the process unfair. We expect more charges will be filed with the NLRB during RM-Petition election processes now than before because of the significant advantage gained by a union in doing so.
Case Study: Starbucks
The NLRB is set to make an example out of Starbucks. The company has faced unionization efforts in hundreds of stores across the country, many of which have resulted in the filing of ULP charges. The NLRB is now considering how to apply Cemex at a Long Island, New York, store based on a petition to its Brooklyn office asking for the application of a bargaining order. Despite a 6-5 vote against unionization in June 2022 at the Great Neck store, the regional office accused Starbucks of grave violations of workers’ rights during a unionization effort, including threats to withhold promotions and stricter enforcement of work rules. These allegations are typical in the lead-up to union campaigns. However, under the new Cemex rubric, the NLRB could bypass a vote altogether and order the company to begin negotiations with a union at that particular store.
Preparing for the Post-‘Cemex’World
The NLRB’s application of Cemex extends beyond Starbucks. In a Cemex environment, the employee vote can be thrown out if the company commits a relatively minor technical error. Thus, today’s union avoidance requires proactive, sensitive approaches to employee relations and legal compliance. Employers must engage in strategic planning and strict legal compliance training well before a union gains employee support, to avoid inadvertently triggering a bargaining order and to ensure their election victories are upheld by the NLRB. Without such preparation, any misstep could result in a federal order to bargain with a union, even if the majority of workers don’t want one.
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