In 2022, the media were reporting on the record-setting popularity of labor unions. Channels like Vox reported that labor unions were winning nearly two-thirds of their elections. Simultaneously, the nation saw a sharp spike in labor strikes.
Recently, NPR offered a more balanced take on the so-called “surge” of union popularity. Its report noted that while unions enjoyed record popularity and a surge of new members, the overall rate of membership continued to drop. NPR cited several reasons for this “union paradox.” One was the rate of employer interference in union elections. Employers that interfered in elections sponsored by the National Labor Relations Board might be subject to a Board order for a rerun election. Now, that has all changed and the risks of unionization are far greater than ever before.
All employers, including those in California, will now want to think twice before they go too far. They want to make sure they understand where the lines are drawn. If they cross those lines, they may no longer face an election “do-over.” Now, The National Labor Relations Board will likely throw out the election results and force those employers to negotiate with the union.
The Cemex decision
This new stance comes as a result of the Board’s recent decision on Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters. In that case, Cemex faced the possibility that its employees might unionize. In response, the company worked with in-house and outside legal counsel, as well as a labor relations consultant, to dissuade employees from voting pro-union.
Consultants informed the company about the legal limits of its potential responses, but Cemex reportedly cross those limits at least two dozen times. As a result, the administrative judge who first heard the case recommended setting aside the election results and providing the union with several “special access” remedies ahead of the election re-run (or “do-over”).
Upon its review, the Board agreed that Cemex would need to set aside the election results. However, it found that the company’s actions warranted “a remedial affirmative bargaining order.” In other words, the Board would force Cemex to negotiate with the union.
As the Board’s Office of Public Affairs noted, employers have a statutory right, and now a legal duty, to seek a union election. In a dramatic turn from past precedent, the responsibility to challenge union representation through an election now rests solely with the employer. In fact, if the employer does not file an RM Petition with the Labor Board, to request an election, to decide the question of union representation, then the employer may still be ordered to recognize and negotiate with the union without an election. And employers face greater pressure to stay within the bounds of legal conduct. Violations of labor law during a pre-election campaign could lead to the union’s automatic installation as the employees’ collective bargaining representative.
The Board’s words were, “[I]f an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and—rather than re-running the election—the Board will order the employer to recognize and bargain with the union.”
Know your limits
The NPR report reminds us that a general pro-union sentiment among the public does not always lead to unionization within a business. Companies can take effective, legal measures to represent their interests.
With the CEMEX decision, all business needs to tread carefully. They have every reason to want to protect themselves from disruptive labor strikes, but they do not want to run afoul of the law. Especially when doing so could now result in an “automatic loss.”