Cemex Construction is challenging the National Labor Relations Board’s (NLRB) “radical change” which would allow the NLRB to bypass an organizing election and order bargaining if it finds the employer engaged in an unfair labor practice during the campaign. It also extended the rules for requiring union election if the union demands recognition. Before this decision, an employer was not required to recognize a union and the union was the one that had to demand an election. Cemex contends that this new standard conflicts with a long standing U.S. Supreme Court rule called Gissel Packing.
Cemex argues that the NLRB’s new ruling fundamentally changes the circumstances under which an employer legally must bargain with a union making it much easier for the union to gain recognition.
With this one decision, the NLRB forces and employer to do something they previously did not have to and second, it gives the NLRB the right to by-pass an election and grant recognition to the union requiring the employer to bargain. The voices of any workers that do not desire a union and would have voted that way, are now silenced and those workers are stuck with a union and monthly union dues. All the NLRB has to show is one or two poorly written policies that gives any worker alleged pause in discussing wages, saying something in social media against the employer, or alleging they did not feel they could report some employer infraction because they believed (not were told or actually prevented) the employer had a policy against it, would give the NLRB justification to hold that the employer poisoned the election campaign and they will grant recognition – a huge power grab by the agency.
The appeal is to the notoriously liberal Ninth Circuit. This Circuit may find that the NLRB had the authority to change its rules or that it is looking to overturn Gissel Packing in favor of a more liberal interpretation of labor law. If the Ninth Circuit Court of Appeals rules against the NLRB, that could be it for the NLRB’s new standard. However, the NLRB often ignores the decisions of lower courts and might go on enforcing their standards on employers until an appeal to SCOTUS rules on the case.
In the meantime, employers are urged to review their policies (have your handbook reviewed) and train their supervisors and management on labor law to avoid allegations of unfair labor practices that may give the NLRB and unions an easy win. ASE offers handbook review and labor law training services.
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Source: Law 360 Employment Authority. Cemex Slams “Radical” Union Recognition Revamp at 9th Circ. (2/2/2024)