Cemex decision narrows pathway for secret-ballot union elections

Sources: National Labor Relations Board; CP staff

In a partial dissent to the majority behind the late-August Cemex Construction Materials Pacific LLC and International Brotherhood of Teamsters decision, National Labor Relations Board Member Marvin Kaplan assesses how his colleagues’ new union representation proceedings standard impacts bargaining unit secret-ballot elections. The new Cemex standard informing agency officials’ orders on union representation elections or rerun elections, he observes:

• Revisits terms of a 1949 NLRB decision, Joy Silk Mills, applied to proceedings where employers are found to have committed National Labor Relations Act (NLRA)-defined unfair labor practices.

• Overturns a 1974 standard, Linden Lumber, setting procedures for organizers responding to employers who refuse to recognize a union when presented with authorization cards amounting to a bargaining unit majority. Linden shifts the burden of filing a representation election petition from the union to the employer.

“The changes my colleagues either propose or implement will predictably result in many more card-based bargaining orders and far fewer representation elections. Under the majority’s new standard, where the results of an election are set aside based on unfair labor practices, there is no longer any such thing as a rerun election,” Kaplan writes. Cemex conflicts with Supreme Court and lower court precedent, he adds, as the employee rights that Congress placed at the heart of the NLRA are “better served by Board-conducted secret-ballot elections than by union authorization cards.”

He also questions the Cemex standard’s limitation on employers who elect to submit RM petitions—those requesting NLRB regional offices to schedule and administer representation elections. By suggesting that even a single unfair labor practice an employer commits from the filing of an RM petition to the election will lead to a bargaining order, Kaplan contends, the Board “has effectively implemented a zero-tolerance standard. The [District of Columbia Circuit Court] has found that a zero tolerance standard to maximize deterrence regardless of the circumstances ‘cross[es] the line from a permissible remedy . . . to an impermissible punitive measure’ beyond the Board’s authority.”

Kaplan concludes his dissent noting how certain unfair labor practices warrant remedies by Cemex Construction Materials Pacific, but that the case itself—centered on an election conducted more than four years ago—should be remanded to the NLRB Regional Director “with instructions to direct a second election at a time he deems appropriate.”

Leading labor law counsel Littler discusses the case and its implications for representation election proceedings in “NLRB’s Cemex Decision – Not Exactly Card Check, but Awfully Close,” posted here.