NLRB Cemex Rule Explained

 

 

Musing About The National Labor Relations Board’s (NLRB’s) Cemex Rule

 

 

Unionism is on the rise in the United States and has been since the end of the pandemic. What’s more, there have been some prominent individuals calling for increased unionism to combat the significant power grabs by corporations: Angus Deaton and American Compass, for starters. The former is an economist who once applauded the erosion of unions and has since changed his mind. The latter is a consortium of prominent conservatives (current Florida senator Marco Rubio and former Attorney General Jeff Sessions are two) who believe workers deserve a seat at the table – and unionism is the most prominent way. (Another musing on Angus Deaton will be published soon).

The table has unfairly tilted towards management and employers for so long now, that many have come to believe Unfair Labor Practices (ULPs) as a new norm and par for the course. Indeed, the National Labor Relations Board (NLRB) states they receive 20,000 to 30,000 charges per year.

That’s a lot.

Employers have banked on the weakness of the National Labor Relations Board (NLRB) for a LONG time. The most they can do is order a new election and reinstate an employee – but by then, the momentum has typically evaporated, and ardent pro-union workers weeded out.

Enter the Cemex Rule.

 

The Cemex Rule Explained

 

The Cemex rule was named after Cemex Construction Materials Pacific – a company in southern California and Nevada. Their drivers attempted to unionize, and once an election was held, a majority (a thin margin, according to the American Bar Association) voted not to unionize.

Unfair Labor Practices (ULPs) are when an employer – in this case, Cemex – violates labor law attempting to sway the decision. If you do some research, you will find that just about every contractor or employer participates in Unfair Labor Practices (ULPs) to some degree because there are no penalties, fines, etc., that are leveraged.

In this instance, the Teamsters alleged Unfair Labor Practices (ULPs), and according to the American Bar Association, “An NLRB Administrative Law Judge found that the employer violated Section 8(a)(1) of the National Labor Relations Act more than two dozen times.”

Normally, this is when a new election is ordered. The National Labor Relations Board (NLRB), according to the article, found that “the employer had so polluted the representation process that the union should automatically be found to have attained a majority of votes. The NLRB’s decision emphasized the impact that violations of Section 8(a)(1) have during the ‘critical period’ after a representation petition has been filed.”

Put another way, the NLRB found that the employees would have voted to be union if the company hadn’t committed Unfair Labor Practices (ULPs) – especially during the so-called “critical period.”

Setting a precedent, the National Labor Relations Board (NLRB) established that when a majority of employees go to their employer and want to be represented, the employer can either voluntarily acknowledge the union or file an RM petition – to have an election to verify that a majority of their employees want to be represented by a union.

However, once the RM petition has been filed, IF the employer is found to have committed Unfair Labor Practices (ULPs), their petition for an election will be dismissed, and they automatically have to recognize and bargain with the union.

Moreover, if the employer fails to file an RM petition promptly – within the timeframe of two weeks – the union can petition the National Labor Relations Board (NLRB) to recognize them – and the employer will likely be ordered to bargain.

The reason?

Because the very act of refusing to file the petition IS an Unfair Labor Practice (ULP).

That is a decided break from the norm where employers could break the law with Unfair Labor Practices (ULPs), slowing the momentum of unionization, and weeding out their more pro-union employees.

 

Why This Matters

 

Recently, the National Labor Relations Board (NLRB) has put this new framework into action for the first time since Cemex – with casino workers seeking to join the Culinary Workers Union. The workers first sought to join in 2019, and the employer has resisted their attempts.

It was found that the employer committed sixteen Unfair Labor Practices (ULPs), and, the National Labor Relations Board (NLRB) stated that “The centerpiece of [Station Casinos’] unlawful campaign was its tripart message promising and granting employees tremendous new benefits without the Union, threatening to withhold or withdraw these benefits if employees selected the Union, and implicitly threatening that selecting the Union could only lead to years of fruitless bargaining without any improvement to working conditions.”

Since this is the first test case since the Cemex rule was established, it WILL be the one that will either firmly establish it as a precedent or be challenged and eroded as it makes its way through the court system. Time will tell which way this goes, but with the Federal Trade Commission’s (FTCs) ban on non-competes and the Department of Labor’s (DOLs) change in overtime availability threshold BOTH being challenged in court, it’s hard to imagine this will not be, either.

What’s more, there are other union elections that we could see the Cemex rule used should Unfair Labor Practices (ULPs) be found – the Mercedes union drive in Alabama is one. The United Auto Workers (UAW) has alleged employees  have faced “an unprecedented, illegal anti-union campaign waged against them by their employer.” Of particular interest is that Mercedes is even claiming their promised increase in wages, better benefits, and working conditions can’t happen because the union has filed objections to the election – an outright lie.

Could Unfair Labor Practices (ULPs) be found in this organizing drive? Is it too much of a stretch for the National Labor Relations Board (NLRB) to find Mercedes violated the Threats, Intimidation, Promises, Surveillance, and Discrimination (TIPS-D) stance?

Researching this, The Society for Human Resource Management (SHRM) says of promises:

“A business cannot interfere in the organizing efforts by assuring employees that the company will make things better for them if they just keep the union out. This is just as illegal as making threats.

Examples of promises include: agreeing to address grievances during the campaign, offering pay increases or better benefits, or promising promotions or special treatment to employees for supporting the company instead of the union” – emphasis mine.

It’s not too hard for me to see an investigation lead this way. Should this be the case, the Cemex rule would be strengthened.

And in a world where employers have been blatant in their disdain for employees organizing together for their collective benefit, that change has been a long time coming.