A new standard for determining when an employer must recognize a union without an election could help workers organize more easily, even though the Teamsters whose case spurred the change continue to fight to have the rule applied to them.
Last year, the National Labor Relations Board (NLRB) announced its new “Cemex” framework that says if a majority of workers sign union cards, their employer can either voluntarily recognize the union or ask the NLRB for an election. If the employer opts for an election then breaks labor law during the election process — say, by promising workers special benefits if they vote no — the NLRB will dismiss the election and order the employer to immediately recognize and bargain with the union.
The Cemex rule replaces the NLRB’s previous practice of re-running union elections when the employer interferes, said Caren Sencer, a labor-side attorney with Weinberg, Roger, & Rosenfeld. It’s hard for a union to win a second election because the excitement of the organizing campaign drops off, and workers may still be scared from a first round of intimidation.
“Cemex was intended to restore balance,” Sencer said
The Cemex case
The new framework ties back to a 2018 organizing campaign at a California-based ready-mix concrete company of the same name. The Teamsters had asked the NLRB to hold a union election for 375 concrete truck drivers at Cemex Construction Materials Pacific at 24 ready-mix plants in Southern California and Las Vegas. A majority of the drivers had signed union authorization cards. But the company launched an anti-union campaign so vicious it changed the outcome of the election: Workers rejected the union in a 179-166 vote on March 13, 2019.
During the period leading up to the election, Cemex spent more than $1 million on anti-union consultants. In testimony to the NLRB, workers said that their managers had prohibited them from wearing union stickers on their hard hats, promised new work trucks if they voted no, and scheduled frequent “captive audience” meetings to try to coerce workers to reject the Teamsters. On the day of the election, the company hired security guards to stand outside the voting sites along with German shepherds.
“That feels pretty coercive,” said Sencer, whose firm represents the Teamsters in the case. “It feels like management has some feelings about what they want you to do and how they are looking at you when you are union.”
The Teamsters filed several unfair labor practice (ULP) charges against Cemex. After a nearly four-year review process that included an appeal by the company, the NLRB ruled that Cemex was guilty of about two dozen of those ULPs. The board also announced its new Cemex framework, then retroactively applied it to this case to order the company to bargain with the union instead of re-run an election.
Cemex filed a lawsuit to challenge the NRLB’s bargaining order, saying the new framework “wreaks a radical change in labor law.” That case is still pending, and Cemex workers won’t know if the Cemex standard applies to them until the suit closes. But everywhere else, it’s already the law of the land, Sencer said.
Joy Silk lite?
Employers might be worried because Cemex is reminiscent of the union-friendly “Joy Silk doctrine” the NLRB used from 1949 to 1970, Sencer said. Under Joy Silk, an employer had to voluntarily recognize a union unless it could prove a “good faith doubt” over whether the union had support from a majority of the workers. For most unions, that meant they moved right to the bargaining table once a majority of workers signed union cards — no election was necessary.
Joy Silk was abandoned in the 1970s in a series of legal cases, making it easier for an employer to refuse to recognize a union, forcing an election, and then use the time leading up to the vote to whittle down support for the union among workers.
“An employer can run a legal anti-union campaign. They can make their opinions known without saying things that cross the line and are coercive to employees,” Sencer said. “But in my experience, that is the exception in comparison to the norm.”
When NLRB General Counsel Jennifer Abruzzo took office in 2021, she proposed restoring the Joy Silk doctrine to disincentivize employers from abusing the NLRB’s election process. Unions might consider Cemex to be a first step toward that — a sort of “Joy Silk Lite” — because it enforces a stricter punishment for violating labor laws than the NLRB has applied the last 50 years, but it still lets employers opt for an election over voluntary recognition.
Cemex also hinges on proving, with ULPs, that an employer really did break the law. As the Teamsters saw at Cemex, that process can take months or years, Sencer said.
“Joy Silk was self-executing. We didn’t have to go through the rest of the ULP process … in order to get that bargaining order. It just happened,” Sencer said. “It allowed for a much swifter move to the bargaining table.”
Still, Sencer says it’s exciting to see at least a partial return of Joy Silk. Since the NLRB announced Cemex in August 2023, some of the unions Sencer works with have told her it seems like elections are happening faster. Perhaps that’s because employers want to shorten the window when a legal slip-up could lead to a bargaining order, she said.
“For your everyday worker, is it increasing the likelihood of an employer voluntarily recognizing the union? I’m just not sure. But it does show the employers that the board overall is interested in ensuring workers’ rights are enforced.”
