Unions win big as NLRB eases representation path (3)

The National Labor Relations Board gave unions a victory with a resolution that borrows from a long-dormant legal doctrine that allows unions to represent workers without a formal vote.

The Democratic majority in the NLRB on Friday created a new test sent The Criterion Elements of the Board’s Rule of 1949 in Joy Silk Mills. But unlike that earlier test, the new framework does not depend on proving that employers have a “good faith suspicion” that unions have majority support in order to require them to recognize and negotiate with unions.

Instead, the new framework calls for employers to recognize a new union or file a fast-track application for an election when the union requests recognition on the basis of a majority of workers showing support.

But if an employer seeking an election violates federal labor law in a way that would require the election to be set aside, the petition will be denied, and the NLRB will order the employer to recognize and negotiate with the union.

In the decision involving Cemex Construction Materials Pacific LLC, the NLRB overturned the 1971 ruling in linden. This now defunct ruling has officially relinquished Joey Silk He believed that the labor law allows employers to refuse to accept evidence of majority support for the union.

“the cemex “The decision reaffirms that elections are not the only appropriate path to obtaining union representation, while also ensuring that when elections do take place, they take place in a fair electoral environment.” Lauren McFerran said in a statement Friday. “under cemexthe business owner is free to use the board election procedures, but never free to misuse them – it’s that simple.

Republican NLRB member Marvin Kaplan defected. He said the alleged adherence to what happens when evidence of majority union support is presented to an employer that has not committed many unfair labor practices, amounts to a non-binding suspension without any prior effect.

But treating that part of the decision as if it were precedent, Kaplan said, would make it “politically incorrect and legally unenforceable”.

Maintaining clean elections

And with its new framework designed to deter employers from violating the National Labor Relations Act in the run-up to union elections, the NLRB has moved away from Jessel bargain orders. The board had imposed those orders when dangerous, unfair labor practices threatened fair elections in the future, a remedy that the US Supreme Court upheld in its 1969 decision in 1969. NLRB v. Jessel Packaging Company.

Our experience leads us to the conclusion that Jessel The board said the standard resulted in a persistent failure to enable employees to win representation in a timely manner despite having a union properly appointed to represent them, thus meeting the law’s requirements for recognition.

The new standard adopted on Friday better ensures workers’ ability to bargain collectively, according to the NLRB.

First, the law requires employers to either recognize a union based on a show of majority support or petition for an election. If the employer requests a vote and then violates the law in a way that frustrates a fair election, the council said it would issue a bargaining order.

“This standard discourages unlawful employer conduct during an election campaign because such conduct is counterproductive for the employer,” the NLRB said. “Her misconduct ensures that she will be subject to a board order requiring negotiation in good faith with the union.”

CEMEX must bargain

NLRB applied its new approach to the case against Cemex, a subsidiary of the Mexico-based multinational building materials company. CEMEX, SAP DE CV. The behavior in question occurred at the Company’s ready-mix concrete plants in Nevada and Southern California.

The board found that Cemex committed a significant number of labor law violations in response to an international Brotherhood organizing crackdown, including the discipline and firing of a prominent union supporter and the threat of job loss and plant closure.

Finding that these violations made a fair election unlikely, the NLRB ordered the company to negotiate with the union on the basis of signed credentials showing majority support.

CEMEX’s attorney, Ross Gardner of Jackson Lewis PC, declined to comment.

The “captive audience” was left untouched

While the decision gives unions a big boost, the board refused to go any further and banned “captive public meetings”, a key part of many employers’ anti-union campaigns, which require workers to listen to arguments against joining. to unions.

Jennifer Abruzzo, the NLRB’s general counsel, has called for the 1948 law to be repealed precedent that allow such meetings, arguing that they are coercive in nature.

But the board said Abruzzo did not allege or prosecute any issue regarding the legality of the mandatory meetings in this case.

The NLRB said the record did not establish that all or most Cemex employees were required to attend the company’s advisory meetings on the threat of discipline.

The case is CEMEX Materials Pak. LLCNLRB, Case No. 28-CA-230115, 8/25/23.

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