The Electrical Worker online
November 2023

'This Is a Big Deal'
NLRB Ruling on Organizing Disrupts
Union-Busting Playbook
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The National Labor Relations Board dealt a massive blow to anti-union employers in August, making it harder than ever for companies to get away with harassing, intimidating and threatening workers to derail an organizing drive.

Now, under a ruling against Cemex Construction Materials Pacific, if a majority of workers sign cards seeking a union, an employer has 14 days to voluntarily recognize the new bargaining unit or call an election.

If they fail, the NLRB will do it for them.

"If an employer commits an unfair labor practice during an election campaign, the board will order the employer to recognize and bargain with the union," International President Kenneth W. Cooper said. "It's that simple. The NLRB will not order a re-run election."

IBEW General Counsel Jon Newman said the Cemex ruling hits employers where it hurts.

"This is a big deal," Newman said. "It makes the business cost higher to commit unfair labor practices during an election. Before, you could do it almost with impunity because the election would have to be re-run. Another election, more ULPs, and you re-run it. Wash, rinse, repeat."

Putting an end to that "will have a significant impact on organizing," Cooper said as he issued a list of best practices in October to help locals take full advantage of the ruling.

A group of workers seeking to join the United Food and Commercial Workers were the first to benefit from the Cemex standard. In September, an administrative law judge in Massachusetts ordered their law-breaking employer, cannabis company I.N.S.A. Inc., to the bargaining table.

Having refused to honor the union cards signed by a majority of employees, I.N.S.A. demanded an election, then fired union supporters and engaged in other misconduct that derailed the 2022 vote.

"The selective and disparate enforcement of previously ignored rules and policies against the organizers and key supporters clearly was intended to send a messageā€¦ that such support could result in discipline or discharge," Judge Andrew Gollin wrote.

The Cemex ruling itself was in response to a series of labor law violations committed by the construction materials company. In 2017, the Teamsters collected signed cards from 57% of about 360 workers at Cemex's two dozen cement facilities in the area. The company hired a union-busting law firm and broke labor laws at least 20 times before the election, the NLRB found.

In its decision, the board made it clear that nearly any violation of labor laws during the critical period before a vote would be grounds to set the election aside and order the company to go directly to the bargaining table.

For decades, most companies that broke the law leading up to an election faced almost no risk or penalty. Typically, the board simply ordered another election, leaving organizers and increasingly deflated group of workers. No longer.

In Cemex, the board also made it an unfair labor practice to ignore unions when they present evidence that they have a majority of signatures in favor of joining in union.

"The goal is to have a free and fair selection process," NLRB Chair Lauren McFerran told Bloomberg. "The Supreme Court has made clear you can have a selection process that involves voluntary recognition, or you can have a selection process that involves an election."

Together with new rules announced the day before the Cemex ruling bringing back Obama-era election procedures, denying workers their right to fair representation elections will be very expensive.

"What was the cost of committing ULPs in the setting aside of an election? It wasn't much, and now it is everything," Newman said.

Big business had a collective meltdown at the board's remedy for corporate malfeasance in union elections. The Chamber of Commerce howled it was a "long-held dream of labor unions" and that "the floodgates [are] now open."

Newman said they're overreacting: "The orders will only be issued when a company made a fair election impossible through illegal behavior. The only way they could be expecting a flood is if they know they broke the law in a lot of cases."

The NLRB found that Cemex and its anti-union consultants repeatedly lied in forced-attendance meetings about "inevitable strikes," and claimed that any facility that voted yes would likely close. Further, managers and supervisors threatened the livelihoods of workers who wore pro-union stickers on their hard hats, announced illegal policies banning workers from talking to union organizers, and disciplined and suspended workers for protected organizing activities, including one firing.

"This case was not run-of-the-mill," Newman said. "Even under the pre-Cemex, business-friendly rules, the board said there was enough here to skip a second election and issue a bargaining order to Cemex. But the standard they adopted would apply to any ULP that impacted an election to such an extent that the election would have to be set aside, not just the worst of the worst."

The board was so concerned that violating the law had become common business practice that it made the ruling retroactive by six months.

Newman said the Membership Development Department is looking for any lost elections during those six months in which an employer made an election impossible.

While important, the Cemex ruling did not deal with the essential problem of bargaining orders: There is still no legal requirement that a company negotiate a first contract with the union.

"It doesn't change the need to do the work on our end: building strong volunteer organizing committees and educating and connecting with unit members so that in the end, we take enough power that businesses have to negotiate," Newman said. "This makes it easier, not easy."

He said that critics who decry the ruling as pro-union are missing the point.

"It's pro-fairness," Newman said. "All the ruling says is that if a company so violates the law that an organizing election is impossible, they don't get rewarded with chances to do it again."

Busting the Union Busters
In addition to the landmark Cemex ruling featured on this page, the Biden-era National Labor Relations Board is vigorously pursuing justice for wronged workers and removing roadblocks to union representation and collective bargaining. Here are some of the highlights from an especially busy summer and early autumn:
IN SEPTEMBER, the board took the remarkable step of seeking the civil arrest of two salon owners in Wisconsin who evaded NLRB and court orders for after unlawfully firing a worker who spoke up about COVID-19 safety in 2020. When the region's U.S. Court of Appeals sent federal marshals to deliver the pair to a same-day hearing, they promptly committed to the board's back-pay process and other remedies and were ordered to pay more than $30,000 in fines and fees.
ON THE EVE of the Cemex decision, the board reversed Trump-era NLRB rules that gift-wrapped new ways for employers to delay union elections. The 2023 rules, effective Dec. 26, are expected to "meaningfully reduce the time it takes to get from petition to election in contested elections" and expedite any post-election litigation.
THE BOARD affirmed and expanded the scope of "protected concerted activity" in August, overturning two more punitive Trump-era decisions. Ruling first against a plastics company that fired a worker who raised COVID-19 concerns, board Chair Lauren McFerran said the "right of employees to engage in concerted activity to improve their working conditions" is central to the 1935 National Labor Relations Act and should not be constrained. The second case involved a woman fired by a nonprofit after rallying co-workers to call for rehiring a respected colleague. While the NLRA protects such advocacy, the law mainly had been applied to actions on behalf of current employees.
UNDOING OTHER damage done in recent years, the board issued a pair of decisions on the heels of Cemex that limit the ability of employers to alter working conditions prior to a first contract or after a contract expires. One case involved a scrap metal company furloughing 10 workers without consulting the new union; in the other, a bottlecap manufacturer imposed a mandatory 60-hour workweek during bargaining when the previous pact expired. The board used the cases to reverse the 2017 Raytheon precedent that gave employers wide berth to make unilateral changes during contract talks. Raytheon upended decades of labor law established by a 1962 Supreme Court ruling in NLRB v. Katz, recognizing that too much latitude for employers amounts to "a circumvention of the duty to negotiate" and weakens unions at the bargaining table.
BRINGING MORE balance to the issuance of work rules in early August, the board overruled the 2017 Boeing decision that allowed employers to adopt overbroad policies instead of tailoring rules to meet legitimate business interests. "Under the new standard, the board will carefully consider both the potential impact of work rules on employees and the interests that employers articulate in support of their rules," McFerran said.