Published on April 26, 2024
Cemex Constr. Materials Pac., LLC, 372 NLRB No. 130 (2023)
By: Ben Narrell*
I. Introduction
In spring of 2023, workers at a central Missouri cannabis dispensary, Shangri-La South, approached Local 655 of the United Food and Commercial Workers union about forming a union.[1] Voters legalized cannabis statewide just months before, and already the state was seeing some of the highest cannabis sales rates in the country.[2] The high sales meant two things: higher profits for the dispensary owners and harder shifts for dispensary workers. Attempting to leverage their role in creating profits into fairer wages and benefits, cannabis workers at the dispensary began a unionization campaign.
Shangri-La South responded with a scorched-earth anti-unionization strategy.[3] When met with demands for recognition, it fired vocal pro-union workers and altered the employee handbook to prevent concerted action.[4] While these actions are illegal under the National Labor Relations Act (“NLRA” or the “Act”), the National Labor Relations Board (the “NLRB” or the “Board”) has been unable to properly remedy such violations. Typically, the NLRB’s remedies would include orders to reinstate the illegally fired employees and cease-and-desists enjoining the employer from further misconduct.[5] But because employer misconduct so often has the effect of permanently damaging the union’s chances at winning a representation election, orders for reinstatements and cease and desists are often not enough to cure the anti-union impact of an employers actions.
This policy results in situations where employers, like Shangri-La South, refuse to recognize unions as a bad-faith tactic to give the employer more time to undermine union support. Only when an employer’s misconduct makes a fair union vote virtually impossible would the NLRB order a misbehaving employer to bargain with the union.[6] Recognizing the perverse incentives created by existing NLRB law, President Biden’s NRLB in Cemex crafted a more worker-friendly approach to ensuring the timely adjudication of representation disputes.[7]
Part II of this note provides the facts and procedural history of the case. Part III discusses the NLRA and the effects of judicial and administrative interpretations of the Act. Part IV outlines the Board’s reasoning behind its new standard for determining when an employer has illegally refused to bargain with a union. Part V discusses the potential consequences of this new standard and argues that the Board’s NLRB’s decision will better protect workers’ rights.
II. Facts and Holding
Cemex Construction Materials Pacific, LLC (Cemex) is a multinational producer of cement and ready-mix concrete with yearly net sales that exceed $15 billion.[8] The ready mix is made on demand in small batches, and each batch is unique to the client’s specifications.[9] Once a batch of cement is made, it must be loaded onto trucks, mixed with water, and delivered to the customer within an hour and a half, making cement truck drivers critical in the manufacturing process.[10]
Seeking fairer wages and better working conditions, a group of Cemex truck drivers in Southern California contacted the International Brotherhood of Teamsters about organizing a union for collective bargaining purposes in late 2017 or early 2018.[11] The Teamsters were already organizing drivers at Cemex facilities in Las Vegas, Nevada, and decided to include both regions in the same organizing campaign.[12] This prospective bargaining unit would encompass over 350 drivers employed by Cemex in the two regions.[13] Drivers at the plants broadly supported union representation for collective bargaining, with roughly 57% of the unit supporting representation.[14] The Teamsters filed for a NLRB-supervised representation election in December.[15]
With an election scheduled for March 7, 2019, Cemex moved aggressively to undermine support for the union.[16] Cemex hired the Labor Relations Institute (LRI), an anti-union consulting firm for employers facing organizing campaigns, to assists the company in its efforts by training managers and meeting with employees almost daily.[17] Cemex was ultimately successful in its efforts to undermine majority support for the union before the election, as the union only garnered 48% support in the March 7 election.[18] The union subsequently filed objections to the elections and unfair labor practices.[19] The General Counsel of the NLRB investigated the charges and chose to prosecute Cemex.
An NRLB Administrative Law Judge (“ALJ”) concluded that Cemex committed almost two dozen unfair labor practices during the election process.[20] Common among the violations were instances in which managers threatened organizing workers with statements about plant closures and reduced work opportunities.[21] Discriminatory treatment toward vocal pro-union employees by plant officials was pervasive as well, including an instance where Cemex suspended and fired an employee due to her organizing efforts.[22]
The ALJ further concluded that Cemex’s severe unfair labor practices and coercive conduct impacted the results of the election and thus required the election be set aside.[23] The judge, however, declined to issue a remedial bargaining order as he did not find that Cemex’s conduct precluded ensuring a fair rerun election under the Board’s Gissel standard.[24] The ALJ concluded that a lack of knowledge among unit members of Cemex’s unlawful activity constituted a mitigating circumstance warranting withholding a remedial bargaining order, and issued a rerun election order only.[25]
On review, the Board agreed with the findings that Cemex had commit egregious unfair labor practices which warranted setting aside the election’s results.[26] The NLRB disagreed with the ALJ that the facts did not warrant a bargaining order under Gissel.[27] Instead of applying Gissel, however, the NLRB crafted a new standard for determining when to issue a bargaining order.
The NLRB held that when an employer “refuse[s] to recognize, upon request, a union that has been designated as Sec. 9(a) representative by the majority of employees[,]” the “employer violates Sec. 8(a)(5) [of the NRLA] unless the employer promptly files a petition [for election] to test the union’s majority status or the appropriateness of the unit ….”[28] Further, when an employer files a petition for election but then proceeds to commit “an unfair labor practice that requires setting aside the election,” the employer is in violation of Sec. 8(a)(5) and “will be subject to a remedial bargaining order.”[29]
III. Legal Background
A. National Labor Relations Act – Background
Passed by Congress in 1935, the NLRA was an effort to prevent labor strife and encourage collective bargaining.[30] In the decades prior, thousands of strikes broke out across the country as millions of workers engaged in often violent struggles for recognition.[31] This labor unrest caused significant disruption to national commerce.[32] Facing a nationwide working class movement, the president and Congress responded with the passage of the NLRA.[33]
The NLRA safeguards the general principle that workers have the right to join a union that will collectively bargain on their behalf. Specifically, Section 7 states that workers “shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]”[34]
Section 8 of the NRLA regulates the conduct of employers, effectuating the rights of Section 7.[35] It defines what labor practices violate workers’ rights and are thereby “unfair labor practices.”[36] Under Section 8(a)(1), any attempt to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” is an unfair labor practice.[37] Importantly, Section 8(a)(5) prohibits an employer from refusing to collectively bargain or to collectively bargaining in bad faith.[38] By preventing disparate treatment among workers simply due to union activity, Section 8 functions to “insulate employees’ jobs from their organization rights.”[39]
To enforce the provisions of the Act, Section 3 establishes the NRLB, the agency responsible for adjudicating charges under the act and for administering remedies when violations are found.[40] Under the modern provisions of the NLRA, the Board consists of five members, with one designated as chair of the Board.[41] The Act gives the Board authority to delegate its powers to regional directors.[42] The NLRB’s General Counsel, appointed by the president and independent from Board membership, investigate and prosecute unfair labor practice charges.[43]
Section 10 empowers the Board to employ a wide range of remedies and legal actions in order to expeditiously adjudicate charges.[44] Typical remedies include cease-and-desist orders or orders of backpay or reinstatement. The Board also has the power to issue remedial bargaining orders in certain circumstances. Such orders require employers to collectively bargain with the designated representative of workers.
The modern Act gives employers the statutory right to challenge the representation status of workers when met with demands for union recognition and charges the Board with adjudicating such claims.[45] To make a challenge, the employer must petition the Board that a reasonable question exists as to the unions status as representing the majority of workers.[46] If the Board determines that there is a reasonable question as to the unions majority status, it “shall direct an election by secret ballot.”[47] If a majority of workers vote in favor of union representation, then the Board will certify the designated union as the exclusive representative of the workers.[48]
B. Administrative Interpretations – Joy Silk, Gissel, & Linden Lumber
Though Section 7 gives employees the right to union representation, the Act is less clear on how that representation is achieved. Section 9(a) of the Act provides that “[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining[.]”[49] The NLRA does not specify under what methods and procedures a representative becomes “designated or selected” as the representative of a bargaining unit.[50]
Therefore the question of when a union has become a representative of workers is a paramount concern for both workers and employers. Under Section 8, worker representation triggers a duty to collectively bargain, and failure to do so puts either party at risk of unfair labor practice charges.[51] Both parties need to know when, without risking a Section 8(a)(5) violation, an employer can either refuse to recognize a majority demanding recognition and petition for an election or choose to do nothing at all. In light of this ambiguity, Board and court decisions in the years following the NRLA’s passage constructed a framework for when a union has been “designated or selected” and when an employee’s duty to bargain is triggered under Section 8(a)(5).
The Board was originally free under the Act to recognize a union as a representative when “it had determined by election or ‘any other suitable method’, that the union commanded majority support.”[52] Using this broad power, the Board would both certify a union as the exclusive collective bargain representative and order an employer to bargain when workers could provide sufficient evidence of majority support.[53] The Board changed course in 1939 when it issued its decisions in Cudahy Packing Co, and Armour & Co. Those decisions held that certification for a union can only flow from a successful Board supervised election.[54] Congress codified this Board precedent into the NRLA in 1949’s Taft-Hartley Act.[55]
After the passage of Taft-Hartley, the Board reaffirmed the principles governing their determinations of Section 8(a)(5) violations in instances where employers had refused to bargain with purported representatives. In Joy Silk Mills, Inc., the Board held that “an employer could lawfully refuse to bargain with a union claiming representative status through possession of authorization cards only if he had a ‘good faith doubt’ as to the union’s majority status.”[56] An employer could not insist on an election and refuse to bargain, however, when driven “not by any bona fide doubt as to the union’s majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union.”[57] Under Joy Silk, therefore, a finding by the Board of a lack of a good faith doubt as to majority status on the part of an employer refusing to bargain is sufficient to justify a remedial bargaining order.
Despite proving an effective deterrent to employer misconduct, reviewing courts began to reflect a dissatisfaction with bargaining orders premised on Joy Silk based on its good-faith-doubt analysis.[58] Courts viewed it difficult to define, in retrospect, the subjective state of mind of employer and contended the standard was both too strict and too broad.[59] This dissatisfaction resulted in significant alterations to the Board’s frameworks for remedial bargaining order determination. In John P. Serpa, Inc., the Board modified Joy Silk to shift these burdens onto the General Counsel, forcing it to prove majority support and that the employer acted in bad faith.[60] Despite the Board’s attempts to appease critics of Joy Silk, criticism was still mounting against Joy Silk and other Board procedures.[61]
Finally, the levee broke. In oral arguments before the Supreme Court of the United States in NLRB v. Gissel Packing Co., Inc., the Board’s attorney announced the abandonment of the Joy Silk good-faith-doubt standard.[62] The Supreme Court acknowledged the admission and fashioned a new standard for the issuing of remedial bargaining orders in the face of unfair labor practices.[63]
The Court held that when an employer engages in unfair labor practices which “have the tendency to undermine majority strength and impede the election processes,” the Board should issue an order for the employer to bargain with the union without an election if:
“[T]he Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.”[64]
The Court also stated a bargaining order could no longer be issued to remedy what it saw as “minor” unfair labor practices.[65] Under Gissel, no amount of unfair labor practices, regardless of how egregious, would be able to trigger a bargaining order unless the union could show that it would be impossible to win a completely hypothetical future election.
The Board’s formal abandonment of Joy Silk came in Linden Lumber Division, Summer & Co., two years after the Supreme Court’s Gissel holding. The Board ruled that it would not find a refusal to bargain violation warranting a remedial bargaining order premised “solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election.”[66] This ruling had the result of effectively making a Board election a precondition to finding a Section 8(a)(5) violation, marking the complete abandonment of Joy Silk.
C. Results of Joy Silk Abandonment
Despite dropping Joy Silk to appease the judiciary, courts still routinely rejected enforcement of bargaining orders premised on the new Gissel framework.[67] Courts erected barriers to the issuing of bargaining orders, reading into Gissel “a rapidly proliferating set of factors,” including the requirement that unfair labor practices be “hallmark” violations.[68] Courts also routinely refused enforcement on the broad grounds that “changes in the management as well as in the work force and the passage of time” rendered a bargaining order inappropriate.[69] This left Gissel orders vulnerable to legal-stalling, which alone could potentially defeat an order regardless of the merits.[70] By the 1990s, the circuit courts demanded at least eight factors be addressed to warrant a Gissel order, reflecting hostility to the orders.[71] The Board responded by retreating from issuing bargaining orders virtually entirely.
At the same time as the Board retreated from issuing bargaining orders, employers committing unfair labor practices saw a “nearly instantaneous” rise, with illegal firing and intimidation charges increasing exponentially.[72] While the number of these charges decreased as the 1980s progressed, both rates “settled into a new equilibrium at a much higher level than existed prior to 1969.”[73] Simultaneous to the sudden rise of unfair labor practices, union election rates, which had been rising steadily through the 1960s, flattened to “virtually no growth” during the 1970s and 80s.[74] This data lays an empirical foundation that abandoning Joy Silk has resulted in a failure to secure workers their rights under Section 7. With the tide of labor unionism sweeping the country[75] and with President Biden’s iteration of the Board determeined to be more worker friendly,[76] however, revisting the Gissel standard is in the sights of labor activists.
IV. Instant Decision
In a 3–1 decision, the Board affirmed the findings of Section 8 violations, set aside the March 2019 election, and issued a remedial bargaining order under a newly articulated standard for adjudicating Section 8(a)(5) violations. The partial dissent, Member Kaplan, joined in the first two conclusions but did not believe that these facts warranted articulating a new standard.
A. Majority Opinion
The Board affirmed the ALJ’s conclusions that Cemex had committed dozens of severe unfair labor practices.[77] Most of these violations occurred during the “critical period” between filing for an election and the election itself, which the Board states is grounds to set the election aside under Board precedent.[78] Accordingly, it affirmed the judge’s decision to set aside the election results.[79]
The Board then addressed whether a remedial bargaining order was warranted under the Gissel standard. The Board stated that a Gissel order is appropriate when an employer commits unfair labor practices leading up to a representation election that precludes a fair election.[80] Under this framework, the Board found that Cemex’s conduct supported a bargaining order.
The Board described Cemex as engaging in “extensive coercive and unlawful misconduct stemm[ing] […] from a carefully crafted corporate strategy designed to skirt as closely as possible the fine line between lawful persuasion and unlawful coercion.”[81] The Board claimed “the purposefulness” of Respondent’s actions strongly suggest that a rerun election would be met with the same or similar unlawful conduct.[82] The Board stated Cemex’s threats of plant closures and job loss, as well as discharges and firings of union organizers, constituted the “hallmark” violations that have generally warranted remedial bargaining orders.[83]
The Board acknowledged the General Counsel’s call for overturning the controlling Gisssel and Linden Lumber standards, and itself expressed significant dissatisfaction with those standards.[84] This is because focusing on whether a future election could be fairly rerun creates “perverse incentives” to delay recognition and gives the employer time with which it can undermine the union.[85] The Board notes that the high standard of proving the impossibility of a rerun election ignores the irreparable harm that unfair violations can have on support for the union generally.[86] Accordingly, the Board found that a new standard was warranted and overturned Gissel and Linden Lumber.
Under its new standard, the Board stated that:
“[A]n employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly files a petition pursuant to Section 9(c)(1)(B) of the Act … to test the union’s majority status or the appropriateness of the unit.”[87]
“If the employer commits an unfair labor practice that requires setting aside the election,” however, “the petition will be dismissed, and the employer will be subject to a remedial bargaining order.”[88]
The Board explained several key benefits of this new standard. First, an employer will no longer be able to refuse bargaining while simultaneously committing unfair labor practices, which contravenes the very intent of the Act to encourage collective bargaining and ensure workers have the right to representation.[89] Second, “employers seeking an election will be incentivized not to commit unfair labor practices in response to a union campaign.”[90] Under the new standard, if the Board finds that an employer has committed unfair labor practices that frustrate a free, fair, and timely election, the Board will dismiss the election petition and issue a bargaining order.[91] Third, the new standard does not rely on inquiries into the employers subjective state of mind as to a “good faith doubt” of an employer’s refusal to bargain.[92]
The Board announced that the new rule would retroactively apply to pending cases, as is within its authority when “manifest injustice” would not result.[93] The Board reasoned that no manifest injustice would be in the instant case as Cemex would have warranted a bargaining order under the then-controlling Gissel standard regardless.[94] Also, any reliance interest other employers had in the old standard was outweighed by the need to enforce the Act.[95]
B. Member Kaplan’s Partial Dissent
Though Member Kaplan disagreed with the majority on several of the unfair labor practice findings and felt that changed circumstances precluded a Gissel order, he focused his dissent on the Board’s adoption of a new standard.[96] The dissent advances several arguments as to why the newly adopted standard is inappropriate and begins by characterizing the decision as dicta.[97] Whereas this case involved an employer which had committed numerous violations, Member Kaplan believed the same standard could not be applied to an employer which had not committed numerous violations.[98]
Under the new standard, Member Kaplan argued that the commission of single Section 8 violation could warrant an order, contradicting Board and court precedent requiring that an order be issued only when substantial violations had been committed.[99] Under Gissel, minor or less extensive unfair labor practices will not warrant a bargaining order.[100] Member Kaplan restates Board precedent that “conduct violative of [Sec. 8] is, a fortiori, conduct which interferes with interferes with […] an election [.]” Thus, the Board’s requirment that the unfair labor practices at issue must rise to such a level as to force the setting aside of an election would be little more than a “speed bump” to the dismissal of an election petition.[101]
While the Board pointed to the inadequacy of other remedial measures, Kaplan stated that Board and court precedent has long held those other remedies as “perfectly capable of dissipating the coercive effects of unfair labor practices so as to permit a free and fair election in all but extreme cases.”[102] Moreover, “[t]he fact that such an order would presumably deter employers from committing unfair labor practices hardly makes the order permissible.”[103]
The dissent also argued that reliance interests in the old standard and should prevent retroactive application of Cemex.[104] Member Kaplan’s last point is that a Gissel order in this case would not be warranted given the four years that have elapsed since the dispute originated.[105] The partial dissent concluded by stating the new standard disregards established law and undermines the rights of workers in their workplaces.[106]
V. Comment
Under the new guidelines, remedial bargaining orders should theoretically be easier to obtain. As the Board stated, there are two scenarios in which a remedial bargaining order will follow from a Sec. 8(a)(5) refusal to bargain violation.[107] The first is when an employer refuses to recognize an appropriate unit that has requested recognition and has also failed to file an election petition challenging the union’s majority status.[108] The second is when an employer has requested a petition then committs labor violations that “frustrate[s] the election process.”[109]
In the former scenario, where an employer fails to recognize the union upon demand and also fails to file an election petition, the union may file a Section 8(a)(5) charge against the employer.[110] While the employer would be permitted to challenge the basis for its bargaining obligation, if the union demonstrates majority support in an appropriate unit, the General Counsel will bring a Section 8(a)(5) violation charge.[111] If the Board agrees with the General Counsel that the unit is in fact appropriate, it will find the employer violated Section 8 by failing to recognize and bargain with employees’ designated representative and will issue a remedial bargaining order directing the employer to bargain with the union.[112]
In the latter scenario, where an employer files an election petition but then commits Section 8 violations rendering the election process as an unreliable indicator of employee choice, the Board may also issue a bargaining order.[113] Instead of relying on tainted procedures as evidence of employee sentiment, the Board “will rely upon the prior designation of a representative by a majority of employees by nonelection means, such as valid union authorization cards, as permitted by Section 9(a) of the Act.”[114] Effectively, this means that the Board may issue an order to bargain any time an election must be set aside under the longstanding framework for determining whether to set aside an election.[115] Importantly, the Board infers that as few as a single Sec. 8 violation may invalidate the election process.[116]
These guidelines have a two-fold effect. First, the new standard rejects the continued use of Gissel orders. Under Gissel, neither of above two scenarios could have per se qualified for a bargaining order from the Board. Under the Cemex standard, however, the employer in these two situations could be forced to the bargaining table. Second, the new standard reanimates a Joy Silk-like framework giving greater weight to union demands for recognition. As under Joy Silk,[117] an employer who fails to recognize a union after being met with a demand to do so and who does not challenge the majority status of the union would be forced to the bargaining table. Unlike Joy Silk, an employer under Cemex that lacks a good faith basis as to its refusal to recognize a unions majority status can request an election and will not be ordered to bargain as long as it does not commit Section 8 violations beyond the refusal to bargain. While the abandonment of a good faith inquiry may result in a seemingly narrower standard, that narrowness is counter-balanced by the Board’s liberal standard for setting aside an election.
To the degree that jettisoning the “good faith doubt” standard actually does result in a narrower framework, the Board likely made a calculated decision. As described above, the biggest criticism hurled by courts and academics at Joy Silk was its requirement to delve into the mind of the employer in making its decision not to bargain.[118] Gissel avoided the issue by adopting a definite standard, and the Board ultimately decided to stick with a definite standard in Cemex as well.
Because of its recency, Cemex raises questions about whether this incentivizes unions to not request certified status as gained through a Board election. If a union chooses not to file an election petition, and an employer refusing recognition also does not file for an election, then the union would, in a sense, automatically win an election that was never held. While the union would not enjoy the benefits of certification, it would enjoy the ultimate benefit of collective bargaining.
On the other hand, this ruling could incentivize unions to request a petition when it is confident that a refusing employer will commit Sec. 8 violations that unfairly dissipate union support. While that may seem odd, employers often commit violations, and so a strategic union could use that to its advantage. Employers thus should be more hesitant to commit unfair labor practices than ever, which is the entire goal of the Board here.
There also remains the question of whether this new standard will actually lead to an increase in bargaining orders and/or a decrease of unfair labor practices. Historical trends unequivocally point to the abandonment of Joy Silk as a driving factor behind the failure to secure workers’ rights in the past few decades.[119] Still, common sense would compel the conclusion that some reduction in unfair labor practices will occur simply given the startling increase in Sec. 8 violations following Joy Silk’s demise.
It is yet to be seen how the courts will treat Cemex. If history is any indication, they will likely to be reluctant to enforce bargaining orders under the new standard, if Cemex even stands at all. Additionally, in the wake of Cemex and other touchstone rulings by the current interation of the Board, there have been a growing number of calls for the Supreme Court to radically curb the power of the Board and the scope of the Act, or just to declare the Act unconsituional altogether.[120] Also, since changes in presidential administration have played a role in the Board’s reinterpretations of Sections 8 and 9 of the Act, it’s worth noting that the country may very well elect a different president in 2024; new Chair and General Counsel appointments in 2025 would likely mean a turn back towards the Gissel framework.
Despite these unanswered questions, one thing is ultimately clear: Cemex is a win for working Americans. While distinct from Joy Silk, the new standard adopted here by the Board harkens back to an era when the Board more zealously prosecuted employer misconduct and protected workers’ rights.
VI. Conclusion
In the days following this decision, the Board brought Section 8(a)(5) violations, under Cemex,against Shangri-La South.[121] Facing the adjudication of its labor practices under this new standard, Shangri-La agreed to bargain with the union rather than litigate those charges and certainly lose, perfectly illustrating the Board’s position that Cemex will result in timely and straightforward adjudication of representation disputes.[122] With workers all around the country re-engaged in the struggle for fairer wages, benefits, and working conditions, only time can tell just how empowering Cemex will be.
_____________________________________
*B.S., Middle Tennessee State University, 2020; J.D. Candidate, University of Missouri School of Law, 2024; Associate Member, Missouri Law Review, 2023-2024.
[1] NRLB Accuses Shangri-La Cannabis Dispensary of Dozens of Illegal Practices, Labor Tribune (Oct. 23, 2023), https://labortribune.com/nlrb-accuses-shangri-la-cannabis-dispensary-of-dozens-of-illegal-labor-practices-2/.
[2] Lauren Schwentker, Missouri is On Track to Set a Record for Marijuana Sales in the U.S., KY3 (Mar. 14, 2023), https://www.ky3.com/2023/03/15/missouri-is-track-set-record-marijuana-sales-us/.
[3] NRLB Accuses Shangri-La Cannabis Dispensary of Dozens of Illegal Practices, Labor Tribune (Oct. 23, 2023) , https://labortribune.com/nlrb-accuses-shangri-la-cannabis-dispensary-of-dozens-of-illegal-labor-practices-2/.
[4] Avery Roehler, Fired Workers Picket Shangri-La Dispensary in South Columbia, KMIZ (May 17, 2023), https://abc17news.com/news/columbia/2023/05/16/shangri-la-dispensary-workers-on-strike-in-south-columbia-claim-they-were-fired-after-wanting-to-unionize/; Region 14-St. Louis Approves Settlement of More than $145,000 for Unlawfully Terminated Employees, an Agreement by the Employer to Recognize and Bargain with the Union Under Cemex, and Training for Managers and Supervisors, NRLB, https://www.nlrb.gov/news-outreach/news-story/region-14-st-louis-approves-settlement-of-more-than-145000-for-unlawfully.
[5] See, eg., Remedies, NLRB, https://www.nlrb.gov/reports/nlrb-case-activity-reports/unfair-labor-practice-cases/remedies-achieved.
[6] See NLRB v. Gissel Packing Co., Inc, 395 U.S. 575, 612 (1969); see also Summer & Co., Linden Lumber Div. 190 NLRB 718 at 721 (1971).
[7] See Cemex Constr. Materials Pac., LLC, 372 NLRB No. 130 (2023).
[8] Cemex, https://www.cemex.com (last visited Oct. 26, 2023).
[9] Cemex, 372 NLRB at 56.
[10] Id. at 56-57.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id. at 3.
[19] Id.
[20] Id. 3–9.
[21] Id.
[22] Id.
[23] Id. at 12.
[24] Id. Under the standard set forth in Gissel, an order to bargain may be issued when the possibility of a fair Board supervised election is slight. NLRB v. Gissel Packing Co., Inc, 395 U.S. 575 (1969).
[25] Cemex, 372 NLRB at 16.
[26] Id. The Board affirmed all but one of the ALJ’s unfair labor practice findings. id. at 6 n.38.
[27] Id.at 16 n.108.
[28] Id. at 25.
[29] Id.
[30] See 29 U.S.C. § 151.
[31] Michael L. Wachter, The Striking Success of the National Labor Relations Act, 493 Fac. Scholarship at Penn Carey L. 427, 434–36 (2012) (“Labor historian Irving Bernstein (1970) describes the industrial struggle during this period as including ‘strikes and social upheavals of extraordinary importance. drama, and violence which ripped the cloak of civilized decorum from society, leaving exposed naked class conflict.’”).
[32] Id.
[33] National Labor Relations Act (1935), National Archives, https://www.archives.gov/milestone-documents/national-labor-relations-act.
[34] 29 U.S.C. § 157.
[35] See 29 U.S.C. § 158.
[36] See § 158.
[37] See 29 § 158(a)(1).
[38] § 158(a)(5).
[39] Radio Officers’ Union of Com. Telegraphers Union, A. F. L. v. N. L. R. B., 347 U.S. 17, 40 (1954). Sec. 8 not only restrains employers, but labor unions as well. See 29 U.S.C. § 158(b). 8(b)(1) makes it an unfair labor practice for a union to coerce workers into membership. Like employees are bound to bargain in good faith under 8(a)(5), so too are unions bound under 8(b)(3). See 29 U.S.C. § 158(b).
[40] What we do, N.L.R.B., https://www.nlrb.gov/about-nlrb/what-we-do (last visited Oct. 13, 2023).
[41] 29 U.S.C. § 153(a).
[42] See 29 U.S.C. § 153(b).
[43] General Counsel, N.R.L.B, https://www.nlrb.gov/bio/general-counsel (last visited Oct. .13, 2023).
[44] See 29 U.S.C. § 160.
[45] See 29 U.S.C. § 159(c)(1)(B) (flush language).
[46] 29 U.S.C. § 159(c)(1)(B) (flush language).
[47] See 29 U.S.C. § 159(c)(1)(B) (flush language).
[48] Conduct Elections, N.R.L.B, https://www.nlrb.gov/about-nlrb/what-we-do/conduct-elections (last visited Oct. 13, 2023).
[49] 29 U.S.C. § 159(a).
[50] See 29 U.S.C. § 159.
[51] See 29 U.S.C. § 158.
[52] Brooks v. N.L.R.B., 348 U.S. 96, 98 (1954) (quoting Sec. 9(c) of the original NRLA).
[53] Cemex Constr. Materials Pac., LLC, 372 NLRB No. 130, 21 (2023) (“However, after Cudahy Packing and the passage of the Taft-Hartley amendments, the Board continued to enforce an employer’s statutory bargaining obligation, regardless of certification, in unfair labor practice cases where a union that had not won a Board election could prove that it represented a majority when it requested recognition.”). Typically, support is indicated by workers signing union authorization cards or petitions, which attested that they supported the designated union to be their representative in collective bargaining with their employer. Your Right to Form a Union, N.R.L.B, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/your-right-to-form-a-union (last visited Oct. 13, 2023).
[54] Cudahy Packing Co., 13 NLRB 526, 532 (1939); Armour & Co., 13 NLRB 567, 572 (1939).
[55] Cemex, 372 NLRB at 21.
[56] Id. at 111 (quoting Joy Silk Mills, Inc., 85 NLRB 1263, 1264 (1949)).
[57] Joy Silk Mills, Inc., 85 NLRB 1263, 1264 (1949).
[58] Brooke Baledge, Back to the Bargaining Table: The Joy Silk Doctrine’s Potential to Revive Union Organization, 101 N.C. L. Rev. 569, 576 (2023).
[59] Cemex, 372 NLRB at 24; Baledge, supra note 58, at 576.
[60] John P. Serpa, Inc., 155 NLRB 99, 100 (1965).
[61] Brandon R. Magner, The Good-Faith Doubt Test and the Revival of Joy Silk Bargaining Orders, 56 U. Mich. J. L. Reform 151, 199 (2022).
[62] See Brian J. Petruska, Adding Joy Silk to Labor’s Reform Agenda, 57 Santa Clara L. Rev. 97, 108–109 (2017).
[63] Cemex, 372 NLRB at 24 (2023).
[64] NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 614–615 (1969). The Court affirmed, however, the use of authorization cards by the Board as a reliable measure of majority status. NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 607 (1969).
[65] Cemex, 372 NLRB at 36.
[66] Linden Lumber Div., Summer & Co., 190 NLRB 718, 721 (1971).
[67] Magner, supra note 61, at 188.
[68] Id. Hallmark violations include violations such as: “threats of loss of wages, benefits, and jobs; threat of plant closure; the pretextual discharge of a top union supporter in the workplace; and the solicitation of grievances with a responsive grant of benefits.” Id. at 191.
[69] Id. at 190.
[70] Id. at 193.
[71] Petruska, supra note 62 at 112–113.
[72] Id. at132. From 1969 to 1981, illegal firing charges under Sec. 8(a)(3) rose from 8,122 to 18,313, an increase of 125%. Likewise, illegal intimidation charges under Sec. 8(a)(4) rose from 947 in 1966 to 6,493 in 1981, a 525% increase. Id. at 117, 118 (“One might ask whether employers did not actually increase their commission of ULPs at all, but rather that unions merely increased their incidence of filing ULPs. However, this explanation is fatally flawed. To begin, both Joy Silk and Gissel provide relatively equal incentives to unions to file ULPs against employers during organizing drives. Unions increase their chances of obtaining relief under either Gissel or Joy Silk by filing charges against employers. The change in rules, therefore, would not explain why unions began filing ULPs more frequently after 1969.”).
[73] Id. at 123.
[74] Id. at 121.
[75] Baledge, supra note 58, at 577.
[76] Id. at 578.
[77] Cemex Constr. Materials Pac., LLC, 372 NLRB No. 130, 3–9 (2023). The Board affirmed all but one violation found by the ALJ. Id. at 6 n.38.
[78] Cemex, 372 NLRB at 3–9.
[79] Id. at 12.
[80] Id.
[81] Id. at 13.
[82] Id.
[83] Id. at 14.
[84] Id. at 25.
[85] Id. at 27.
[86] Id. at 28.
[87] Id. at 25.
[88] Id. at 25–26.
[89] Id. at 27 (2023).
[90] Id.
[91] Id. at 29.
[92] Id.
[93] Id. (internal quotations removed).
[94] Id. at 30.
[95] Id
[96] Id. at 40.
[97] Id. Dicta is language in an opinion “that is unnecessary to the decision in the case and therefore not precedential.” Here, what would otherwise be the most consequential part of my colleagues’ decision is unquestionably dicta; it concerns facts that are neither present in the case before us nor necessary in order to decide the case before us.) (quoting Dicta, Black’s Law Dictionary (11th ed. 2019)).
[98] Id. at 41.
[99] Id. at 48.
[100] Id. at 47.
[101] Id. at 48.
[102] Id. at 49.
[103] Id. at 51.
[104] Id. at 42.
[105] Id. at 52–53.
[106] Id. at 53.
[107] Id.
[108] Id..
[109] Id. at 26.
[110] Id. at 25.
[111] Id. at 25, n.141.
[112] Id.
[113] Id. at 25.
[114] General Counsel Memos (Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC), NRLB, https://www.nlrb.gov/guidance/memos-research/general-counsel-memos (last visited Nov. 13, 2023).
[115] See Cemex, 372 NLRB at 11 (“The Board ordinarily sets aside the results of a representation election whenever an unfair labor practice has occurred during the critical period between the filing of the petition and the election, unless it is virtually impossible to conclude that the misconduct has affected the outcome of the election. In determining whether misconduct could have affected the results of the election, the Board considers the number and severity of the violations and their proximity to the election, the size of the unit and margin of the vote, and the number of employees affected and extent of dissemination of the misconduct. A party seeking to set aside an election has the burden of establishing that coercive conduct was sufficiently disseminated to affect the election’s result.”).
[116] Cemex, 372 NLRB at 36 n.188; See Cemex, 372 NLRB at 46 (Member Kaplan, dissenting).
[117] Joy Silk Mills, Inc., 85 NLRB 1263, 1264 (1949).
[118] Cemex, 372 NLRB at 30.
[119] See Petruska, supra note 62 at 111.
[120] See Taylor Giorno & Julua Shapero, Corporate Giants Aim to Hobble National Labor Relations Board, The Hill (Feb. 2, 2024, 6:00 AM), https://thehill.com/business/4491063-corporate-giants-aim-to-hobble-national-labor-relations-board/#:~:text=The%20corporations%20claim%20that%20the,%2C%E2%80%9D%20which%20typically%20involves%20misconduct; see also Alexander Thomas Macdonald, Is the NRLB Unconsitutional? The Courts May Finally Decide, The Federalist Society (Nov. 10, 2023), https://fedsoc.org/commentary/fedsoc-blog/is-the-nlrb-unconstitutional-the-courts-may-finally-decide.
[121] Point Management, LLC, d/b/a Shangri-La, NRLB, https://www.nlrb.gov/case/14-CA-324836 (last visited Apr. 18, 2024).
[122] Region 14-St. Louis Approves Settlement of More than $145,000 for Unlawfully Terminated Employees, an Agreement by the Employer to Recognize and Bargain with the Union Under Cemex, and Training for Managers and Supervisors, NRLB (Nov. 6, 2023), https://www.nlrb.gov/news-outreach/news-story/region-14-st-louis-approves-settlement-of-more-than-145000-for-unlawfully.