Last year’s monumental decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130, is already overturning Company union election wins. Following the legal framework in Cemex, the U.S. District Court of Massachusetts struck down the results of a union election. The court issued a bargaining order requiring the company to bargain with the union (even though it won the election) and granted a petition for injunctive relief.
Legal Framework Under Cemex
In August 2023, the National Labor Relations Board (NLRB) reached its decision in Cemex. The decision has two key parts. First, it establishes a new obligation for employers which refuse to voluntarily recognize the union as their employees’ representative. Second it lowers the threshold required for the NLRB to issue a Gissel bargaining order.
Regarding the first part of the decision, if a majority of employees sign union cards and the union subsequently requests the employer recognize it as the representative of the employees, the employer has two options; either recognize the union and begin bargaining, or “promptly file a petition” with the NLRB to trigger the election process. In the past, the employer had no obligation to file the petition for an election; it was the union’s burden. In the grand scheme of things, this change is not that significant, as long as employers understand this is their obligation.
The second part of Cemex is the crucial aspect. It has long been established that bargaining orders void a union election regardless of the result and mandate the company bargain with the union. Under the Supreme Court ruling in Gissel (1969), a bargaining order should be issued when “the possibility of erasing the effects of past [unfair] practices and of ensuring a fair election (or a fair rerun)” is unlikely. Prior to Cemex an employer had to commit severe unfair labor practices to warrant such an order. If the conduct did not meet this high threshold, a re-run election would have been issued. This ruling lowers the threshold for conduct that would mandate a bargaining order.
Cemex Affirmed
In December 2021, the United Food and Commercial Workers International Union began campaigning at an INSA Cannabis Dispensary in Salem, Massachusetts. As a result, 20 of 28 employees presented their employer with union authorization cards and a request for union recognition. INSA did not recognize the union and the union subsequently filed a petition for an election with the NLRB.
The union lost the election but accused INSA of committing serious unfair labor practices which unlawfully swayed the election. The union brought their claim to the NLRB alleging the following serious misconduct:
- Prohibiting employees from discussing the union or engaging in union activity in the workplace.
- Soliciting grievances.
- Implying improved benefits and employment conditions to those who remained uninvolved in union efforts.
- Disciplining or discriminating against employees involved with the union.
On September 21, 2023, the Administrative Law Judge issued a bargaining order requiring INSA to negotiate with the union along with several remedial orders. INSA appealed to the NLRB, during which time the NLRB Regional Director sought temporary injunctive relief from the court under Section 10(j) of the National Labor and Relations Act (NLRA).
The court issued a temporary injunction. The court’s reasoning had four components. First, the union was likely to succeed. Second, without an injunction, the harm may be permanent. Third, the balance of equities was in the union’s favor. Fourth, granting an injunction was in the public interest.
The Company appealed the lower court’s order. Further developments are expected.
Key Takeaways – What You Need to Know
This case affirms that Cemex is the new standard. While it is evident the threshold to grant a Gissel bargaining order has been lowered, it is still unclear by how much. Exactly where the new line will be found is unknown. As such, employers must remain wary.
What can employers do? First, train supervisors in what they legally can and cannot do in order to reduce the likelihood of unfair labor practices. Second, take immediate action when union activity arises. Engaging skilled counsel can save time, money, and reduce the likelihood of your operation becoming unionized. If the law is broken and a bargaining order is issued, the employer will have no choice but to bargain with the union.
Brody and Associates regularly advises its clients on all labor management issues, including union-related matters, and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
