May 3, 2024

Cemex: It’s a Whole New Card Check Ballgame

While much has been written about the new card check provisions of the Agricultural Labor Relations Act, a recent National Labor Relations Board (NLRB) decision which extends to most private sector employers, including commercial packing and processing facilities, threatens to impose card check on those employers as well. The 2023 National Labor Relations Board (Board) ruling in Cemex Construction Materials Pacific, LLC (Cemex) deviated significantly from decades-long precedent regarding the voluntary nature of card check recognition.

In Cemex, the Board found that the employer’s anti-union activity so tainted the election that its only remedy was to set aside the election results.

The New Standard

The new standard for challenging certification makes it an unfair labor practice to refuse to recognize, upon request, a union designated as a representative by the majority of employees in an appropriate unit unless the employer promptly files a Representation Management (RM) petition to test the union’s majority status or the appropriateness of the unit.

This standard shifts the traditional burden of filing of the RM petition from the union to the employer. The reason being that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing a Section 8 violation, file an RM petition to test the union’s majority support and/or challenge the appropriateness of the unit or await the processing of a previously filed petition.

However, if the employer commits unfair labor practices sufficient to invalidate the election, the RM petition can be set aside, subjecting the employer to a remedial bargaining order. This allows the Board to rely on the prior designation by non-election means and issue an order requiring the employer to recognize/bargain with the union. Cemex is applied retroactively.

What It All Means

Cemex creates a new path to union representation that bypasses the election process and effectively implements card check certification.

As with all union-related efforts, creating a workplace where employees feel valued and heard is the best course of action. Key points include:

  • In determining whether an employer’s allegedly unlawful conduct undermined election efforts, “all relevant factors” will be considered. This will likely include a review of the company’s Employee Handbook. All policies governing specific actions/interactions should be reviewed and edited to make clear that while limiting certain types of conduct, they do not create a wholesale prohibition on the right to discuss public information (e.g., salary/wages, discipline, promotion criteria etc.)
  • The types of union-related behavior the Board found unlawful included:
    • Supervisors threatening employees that:
      • They could be fired/written up for having union stickers on hardhats or be discharged/receive reduced hours/benefits if they unionized;
      • They were not to speak to “these union guys” and a refusal to remove union stickers from hardhats would result in discharge;
      • Unionization would negatively impact work opportunities/wage increases.
    • Misrepresenting striker reinstatement rights.
    • Repeated threating that unionization will cause the company to shut down/move to another state.
    • Questioning employees about wearing pro-union stickers/asking about union offerings.
    • Asking employees their position on union activities and why, if they support the employer, are they not wearing ‘Vote No’ stickers.
    • Creating an impression of surveillance (e.g., lingering at property entrances waving to drivers entering/exiting while union organizers in the same area display posters and answer questions).
    • Targeting pro-union employees for disciplinary action.

Nothing prohibits taking lawful steps to oppose unionization efforts. However, caution must be taken to ensure such efforts are closely monitored so they do not morph into overly zealous actions that could be viewed as obstructing/interfering in the employee’s NLRA rights.