Bosses Already Challenging New Rule Making Unionizing Less Difficult

By Steve Wishnia

A National Labor Relations Board [NLRB] decision expanding when employers must recognize unions might be a landmark with far-reaching effects — but it is already being contested in the federal courts.

The NLRB’s 3-1 decision in Cemex Construction Materials Pacific, issued Aug. 25, ordered a concrete company to bargain with the Teamsters Union. It held that the company’s unfair-labor-practice violations before a union-representation election in March 2019 had been so egregious that it would be impossible to have a fair revote.

The board also set a new rule for representation elections: If a union submits authorization cards signed by a majority of workers in the bargaining unit, the employer must either recognize the union voluntarily or request an election within two weeks.

“I’m really excited for it,” Caren Sencer, the lawyer representing the Teamsters, told Work-Bites. Employers will no longer be free to ignore requests for voluntary recognition, she explains, and the tougher regulations will deter intimidation of workers.

“The penalty for poisoning the well is ‘you have to bargain with the union,’” she says. It’s no longer “more time to rerun an anti-union campaign.”

Cemex Construction Materials Pacific, a subsidiary of a Mexico-based multinational concrete company, filed an appeal in federal district court in Washington, D.C. on Aug. 30. It said that the NLRB order for it to negotiate with the Teamsters “is not supported by substantial evidence and is contrary to law,” and that the board’s “dramatic modification to the union representation process and remedial framework for unfair labor practice charges committed during the critical period preceding a representation election is inconsistent with the National Labor Relations Act and flawed in several respects.”

$1 million for union-busting

The Teamsters, who had been organizing drivers at Cemex facilities in Las Vegas and Southern California, petitioned for an election in the fall of 2018, after it collected authorization cards from 207 of the 366 drivers.

The company responded with what Sencer calls “one of the most comprehensive anti-union campaigns I have seen.” It spent more than $1 million to hire Labor Relations Institute, an Oklahoma-based “union avoidance” outfit, to run captive-audience meetings.

The Teamsters narrowly lost the representation vote, 179-166. But in December 2021, an NLRB administrative-law judge ruled that Cemex had violated federal labor law more than two dozen times, by threatening to close plants, firing one union supporter, and threatening to fire drivers for having union stickers on their hard hats.

“If any good came out of this company’s scorched-earth thuggery, it’s that now employers will think twice before they break the law to break the union,” Teamsters Joint Council 42 President Chris Griswold said in a statement.

Ironically, Sencer says, Cemex’s Northern California drivers are unionized, and it has a good relationship with the Teamsters there.

Legal issues

“Except for secondary boycotts, this is the most difficult area of labor law,” says West Virginia University Law School professor Anne Lofaso, a former NLRB attorney. The main standard comes from a 1969 Supreme Court decision, NLRB v. Gissel Packing Co. It held that the NLRB could order an employer to bargain if it had committed “hallmark violations” during the weeks before a representation election, on the grounds that the fear would still loom over workers in a revote.

The NLRB’s order to Cemex was based on Gissel. Even Marvin Kaplan, the sole Republican on the board, agreed. But Gissel orders are rare, Lofaso notes. The NLRB has issued at most five in the past 20 months.

The new election rules are likely to have more of an effect, she says. Although a 1974 Supreme Court decision says employers have the right to refuse to bargain with a union unless it has won a secret-ballot election, they require employers who refuse to request a vote. But they also differ from Joy Silk, the 1949 NLRB decision overturned by the Gissel decision. It allowed employers to refuse to recognize a union voluntarily if they have good-faith doubt that the union has a majority, but not if they are motivated “by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union.”

That is “really hard to prove,” Lofaso says. The new regulation “simplifies this entire area of law.”

The details will likely be worked out in future NLRB cases and then in federal courts, she adds, but overall, the intent is to close loopholes that enable employers “to avoid bargaining for years.”

“Even though it’s a small step, it’s a big step,” she says.

Many unions will apply for an election anyway, says Caren Sencer, rather than wait two weeks for the employer to do so.

Immediate effects

The Cemex decision will discourage “corporations like Starbucks from committing egregious unfair labor practices,” the Workers United union said in a statement. As of Aug. 9, according to NLRB figures, Starbucks Workers United had won about 80% of the 430 representation elections held at the coffee chain. It has challenged 11 of the 79 it lost, and an NLRB administrative-law judge issued a Gissel bargaining order at a Starbucks in Buffalo in March.

A Workers United spokesperson told Work-Bites that the union wasn’t clear about whether the new rules would be retroactive, but that a few days after the Cemex decision, it had requested recognition at a Starbucks in Las Vegas without filing for an election.

On Sept. 6, workers at the International Rescue Committee’s Dallas office also asked for direct recognition of their new union, Office and Professional Employees International Union Local 277. The 80 members gave the nonprofit organization until Sept. 20 to respond.

The Cemex decision came the day after the NLRB adopted new rules intended to speed up union-representation elections. Those rules, which will go into effect Dec. 26, reverse changes the board made during the Trump administration. They will eliminate a four-week waiting period imposed in 2019, and delay litigation over issues such as which workers are eligible to vote until after the election.

“In many cases, those issues will become moot because they end up not impacting the results of the election,” the NLRB said in its explanation. “Thus, unnecessary and inefficient litigation that was required under the 2019 rule will be avoided.”

“I just hope they get to the bargaining table soon,” says Sencer. “This group of employees has been waiting for their union since 2018, which is a really long time. Delay always favors the employer.”