Bloomberg: Card-Check Unionization and Captive-Audience Ban May Be Coming Any Day
The National Labor Relations Board (NLRB) “is poised to release a number of decisions in the next two weeks with the potential to significantly alter the nation’s labor doctrine in favor of unions,” reported Bloomberg’s Daily Labor Report on Monday.
While there are multiple decisions expected, the most consequential decision for employers, unions and employees is the long-awaited Cemex decision, which, if the NLRB rules as many expect, would a) impose de-facto card check unionization, and b) ban so-called employer “captive audience meetings.”
Per Bloomberg [emphasis added]:
The National Labor Relations Board is poised to release a number of decisions in the next two weeks with the potential to significantly alter the nation’s labor doctrine in favor of unions, as Democratic board member Gywnne Wilcox’s term draws to a close later this month.
The cases, which have been fully briefed, are part of an effort NLRB General Counsel Jennifer Abruzzo outlined two years ago to overturn roughly 50 board precedents.
….
The most highly anticipated case for labor law observers is one concerning Cemex Construction Materials Pacific LLC, which could overturn two separate NLRB precedents.
Abruzzo has asked the board to resurrect the Joy Silk doctrine—which would allow unions to bypass an official NLRB election with a card-check vote instead—and overturn the 1940’s Babcock & Wilcox ruling to make captive audience meetings unlawful.
The Cemex case
In April 2022, the NLRB General Counsel filed a brief to ban so-called "captive audience" meetings and install back-door, de facto card check recognition.
In the case, involving Cemex Construction Materials Pacific, the National Labor Relations Board (NLRB) published the NLRB General Counsel’s 93-page briefing urging the National Labor Relation Board to overturn more than 70-years of case law.
In the Cemex brief, Fernando Anzaldua, the Counsel of the General Counsel (CGC) urged the NLRB to change numerous NLRB standards to make it easier for unions to unionize workers, including, by:
Holding “that an employer violates Section 8(a)(1) of the Act when it explicitly misrepresents an employee’s right under the proviso to Section 9(a) to deal directly with their employer after selecting an exclusive bargaining representative.” [p.4]
Reinstating “the doctrine under Joy Silk Mills, Inc., prospectively, because the Board’s current remedial scheme has failed to deter unfair labor practices during union organizing drives and provide for free and fair elections.” [p.5]
Overruling Babcock & Wilcox Co. and “hold that an employer violates Section 8(a)(1) of the Act when it threatens employees with reprisal if they decline to listen to speech concerning employee exercise of Section 7 rights.” [p. 5]
Card-Check Unionization
As noted here, the implementation of the Joy Silk Doctrine—which goes back to 1949—would to require employers to bargain with unions when a majority of employees have signed union authorizations and the employer cannot prove it has a good-faith doubt of the union’s majority status, or where an employer has violated its employees rights to unionize.
General Counsel Abruzzo first mentioned the Joy Silk Doctrine publicly last August when she issued a “Mandatory Submission to Advice” memorandum [in PDF here] to all NLRB Regions.
On page 7 of the memorandum, GC Abruzzo instructed all NRLM regions to submit:
“Cases in which an employer refuses to recognize and bargain with a union where the union presents evidence of a card majority, but where the employer is unable to establish a good faith doubt as to majority status; specifically, where the employer refusing to recognize has either engaged in unfair labor practices or where the employer is unable to explain its reason for doubting majority status in rejecting the union’s demand. See Joy Silk Mills, Inc., 85 NLRB 1263 (1949).”
While no one knows if Bloomberg’s Daily Labor Report is correct on the timing of the NLRB issuing its decision on Cemex, however, it is very possible that labor relations throughout the United States may be undergoing a significant change any day.
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