“The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment,” said the NLRB chair.

By Jessica Corbett. Published 8-25-2023 by Common Dreams

The National Labor Relations Board on Friday announced a new framework for determining when companies must bargain with unions without an election—a policy that supporters said will make union-busting much more difficult.

Following the NLRB’s decision in Cemex Construction Materials Pacific, when workers ask an employer to voluntarily recognize a union as their bargaining representative, the company can voluntarily do so and begin good-faith negotiations.

Alternatively, the company may file a petition seeking an election, and as long as it does not commit unfair labor practices, one will be held. However, if a company does engage in such violations—or refuses to voluntarily recognize a union and fails to file a petition—the NLRB will now order the employer to recognize and bargain with the union without an election.

Under Cemex, when a union requests recognition because a majority of employees have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file a petition seeking an election. pic.twitter.com/CBivtifF7F

— NLRB (@NLRB) August 25, 2023

In other words, “union-busting just got a lot harder,” More Perfect Union said on social media. “This brings the board’s position closer to the old Joy Silk doctrine, which held that if a majority of workers signed union cards, there didn’t need to be an election at all and bosses just had to recognize the union and bargain in good faith.”

The Joy Silk doctrine came from a 1949 NLRB decision and was replaced by the Gissel doctrine in a 1969 U.S. Supreme Court case.

As VICE reported Friday:

NLRB General Counsel Jennifer Abruzzo issued a memo earlier this year demanding that the board revive Joy Silk, something that labor activists have been fighting for since it was overturned. The Cemex decision issued on Friday is a partial step in that direction.

“What this new decision does is, it’s a compromise,” said Eric Blanc, an assistant professor of labor studies at Rutgers University. “It’s not a return to ‘card check,'” the unionization process in the 1930s and ’40s that said if a majority of workers signed cards stating they wanted a union, the company was obligated to recognize and bargain with them—which Joy Silk had upheld.

“If there’s intense illegal union-busting, as is very often the case, the NLRB can force the employers to immediately recognize the union rather than have to go through another union election,” Blanc said. “But it’s far short of what many union organizers were hoping for. By not making ‘card check’ the norm, [it] still opens up the process to all sorts of legal appeals and delays, which is ultimately one of the main tactics of employers—to delay the union first and then hold things up in endless appeals. This unfortunately doesn’t avoid that dynamic, but it does get the NLRB more powers to require employers to recognize unions, and that should be at least a partial deterrent on employers’ willingness to break the law.”

Brishen Rogers, a professor at Georgetown University Law Center, said on the social media platform X that “Cemex may be the most important NLRB decision in a generation.”

It is “hard to say if it will survive review,” Rogers added. “But labor and the state can use it to change power alignments right now through organizing—which in turn would *help* it survive review.”

The NLRB's Cemex decision is a key win for workers and will ease the process of union recognition.

"Under Cemex, an employer is free to use the Board’s election procedure, but is never free to abuse it—it's as simple as that,” notes @NLRB Chairman Lauren McFerran https://t.co/4a5ZRXpaSo

— WorkersRightsInstitute (@WorkersRtsInst) August 25, 2023

In the case of Cemex—a U.S. subsidiary of a multinational that provides ready-mix concrete, cement, and aggregates to the construction industry—the NLRB “found that the employer engaged in more than 20 instances of objectionable or unlawful misconduct during the critical period between the filing of the election petition and the election,” the agency said in a statement. “Accordingly, the board found that the employer was subject to a bargaining order under both the Supreme Court’s decision in NLRB v. Gissel Packing Co. and under the newly announced standard, applied retroactively in this case.”

NLRB Chair Lauren McFerran connected the Cemex decision and the board’s Thursday rollback of policies established under the Trump administration that dragged out union elections—a move also welcomed by workers and labor rights advocates.

“Today’s decision, along with the board’s recently issued final rule on representation, will strengthen the board’s ability to provide workers across the country with a timely and fair process for seeking union representation,” McFerran said. “The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment. Under Cemex, an employer is free to use the board’s election procedure, but is never free to abuse it—it’s as simple as that.”

This work is licensed under Creative Commons (CC BY-NC-ND 3.0).