New Path to Ease Unionization Must Overcome Judicial Scrutiny

The National Labor Relations Board’s new framework for easing unionization remains vulnerable to legal challenges despite features that should avoid some pitfalls in federal court.

In Cemex Construction Materials Pacific, the board put the onus on employers to seek elections when unions claim majority support and to refrain from illegal interference in those contests, under the threat of orders to recognize and bargain with unions without a formal vote.

The Cemex framework’s zero tolerance for coercion prior to an election has the potential to significantly reduce unlawful employer conduct, said Brian Petruska, general counsel at the LIUNA Mid-Atlantic Regional Organizing Fund.

“But to get there from here, the board is going to have to make the Cemex doctrine stick,” said Petruska. “If the board can’t get it enforced in court, then it’s not worth anything.”

And beyond getting court enforcement of individual orders, circuit court disapproval of the Cemex framework could put it on a path for review by scrutiny at a conservative US Supreme Court that’s been skeptical of organized labor and NLRB authority.

Cemex is the NLRB’s third legal regime designed to clean up elections by creating avenues for unionization without elections. The new standard should be more resistant to court scrutiny than its predecessors, according to labor lawyers and law professors.

Like the doctrine from the board 1949’s decision in Joy Silk Mills, Cemex provides a route for unions to represent workers based on signed cards showing majority support.

Yet it now gives employers an option for an election and abandons a legal test that turned on the presence of good-faith doubt about a union’s majority support among workers to decide whether to require a company to recognize and bargain with a union.

And similar to the framework endorsed by the Supreme Court in 1969’s NLRB v. Gissel Packing, Cemex calls for an order to bargain even in the absence of a union election victory if the board finds that an employer violated federal labor law in advance of the vote.

But by requiring fewer and less serious unfair labor practices before the board issues a bargaining order, many Cemex orders will be litigated faster than Gissel orders, which some courts have rejected because of the passage of time between the illegal conduct and a court decision.

‘Visceral Reaction’

Although Cemex offers some improvements over Joy Silk and Gissel in terms of court review, the NLRB will still have to overcome some judges’ discomfort with unionization in the absence of an election.

“Some judges will be fine with it, but certain judges have that strong visceral reaction to non-election bargaining orders,” said Jeffrey Hirsch, a labor law professor at the University of North Carolina and a former NLRB attorney. “Even though Gissel said that’s okay, judicial review might come down to the facts in some of these cases.”

For example, some circuit courts would be more comfortable enforcing a Cemex bargaining order when the union had signed cards from 90% of the workers compared to just 51%, Hirsch said.

As to the framework itself, Cemex‘s two main pillars are open to court challenges, said Ryan Funk, a management-side labor lawyer at Faegre Drinker Biddle & Reath LLP.

Cemex requires employers to recognize a new union or promptly file for an election when the union asks for recognition based on majority support from workers. Failure to seek an election within two weeks of the recognition demand will result in an order to recognize and bargain with the union, absent unforeseen circumstances.

If an employer violates federal labor law in a way that would require setting aside the results of the vote, then the NLRB will set aside the election petition and order the employer to recognize and bargain with the union.

The NLRB described the mandate for employers to either recognize unions with majority support or file for elections as a function of its remedial authority, an apparent attempt to win deference from reviewing courts, Funk said.

But if a court sees it as a substantive change because it created a new unfair labor practice, then the NLRB’s explanation that it’s focused instead on remedies may not satisfy that court, he said.

More significantly, Cemex’s mandate to issue a bargaining order when there’s unfair labor practices runs headfirst into Gissel, which set a much higher standard for ULPs that can trigger bargaining orders, Funk said.

To the extent Cemex has holes in its reasoning, however, the NLRB can address them in future decisions that impose bargaining orders, said Anne Marie Lofaso, a labor law professor at West Virginia University and a former NLRB attorney.

Federal courts that have problems with the framework itself would send a case back to the NLRB for further explanation rather than strike it down, Lofaso said. That scenario would give the board a chance to fine tune its reasoning so a court could better understand it, she said.

“This is the hardest area of labor law maybe behind secondary boycotts,” Lofaso said. “If it’s hard for a labor lawyer, imagine how hard it is for a federal judge who isn’t an expert in labor law.”

Major Questions Doctrine

A broader legal challenge to Cemex also lurks in the form of the “major questions doctrine,” said Michael Duff, a labor law professor at St. Louis University and a former NLRB attorney.

That doctrine, which requires Congress to speak clearly when empowering agencies to regulate issues of vast significance, has gained prominence in recent years as a tool for judges to roll back federal regulations.

Critics of Cemex could argue that the decision takes away employee free choice, despite Gissel allowing for non-election bargaining orders and the National Labor Relations Act specifically saying unions can be designated as well as elected, Duff said.

Alternatively, a circuit court might say an NLRB doctrine that significantly increases the number of unionized workplaces qualifies as a major question, he said.

“The great danger is a Cemex case in a hostile circuit court, then you get a circuit split,” Duff said. “Then it gets taken up by this Supreme Court.”