A decision by the National Labor Relations Board (NLRB) that has been viewed–and used–by unions including the Teamsters as an easier route to organize workers without a secret ballot election has taken a blow in a federal circuit court. In a decision handed down last week in the Sixth Circuit, a divided appellate court ruled that the NLRB had overstepped its authority in establishing its Cemex standard in August 2023, in a ruling that coincidentally involved truck drivers at Cemex Construction Materials Pacific. ” The Sixth Circuit is the first federal court to reject the NLRB’s Cemex standard.
display('div-gpt-ad-1709668545404-0'); }); Cemex’s conclusion held that where the NLRB board finds an employer engaged in unfair labor practices, it can issue a “bargaining order,” requiring the employer to negotiate a contract with the workers that had sought a union. The Cemex decision went further than an earlier NLRB standard known as Gissel, which allowed the NLRB to order an election to resolve an employer’s unfair labor practices but with tighter guidelines than Cemex. ” Unionization drive at Brown Forman In the case before the Sixth Circuit, liquor producer Brown Forman (NYSE: BF-B) brought suit against the NLRB for its ruling in a case involving the Teamsters at the company’s Woodford Reserve facility in Kentucky.
The union had sought to organize workers there. A unionization drive that looked like it was going to succeed in an election was derailed by the company’s various promises and policy changes, like higher pay, which the NLRB found–and the Sixth Circuit agreed with–constituted unfair labor practices, coming as the election loomed. The union lost the election.
Coming out of that defeat, the Teamsters filed an unfair labor practices action against Brown Forman. As the law firm of Foley Lardner described what happened next , that action taken by the union against Brown Forman at the NLRB was successful. (Ironically, the Sixth Circuit decision, even in an action that would be seen as damaging to union organizing, agreed that Brown Forman had engaged in unfair labor practices).
display('div-gpt-ad-1665767553440-0'); }); The NLRB, Foley Lardner said, then used the Cemex standard to tell the distiller that it “should be required to recognize the union as the employee’s representative and should also be required to bargain with the union over terms and conditions of employment. ” Giving NLRB more power In a commentary on the Sixth Circuit decision , the Ohio-based law firm of Benesch said the Cemex decision allows the NLRB, if it finds unfair labor practices, “to recognize and bargain with the union. ” Gissel Packing, an NLRB standard that had guided cases like Brown Forman earlier, was pushed aside by Cemex.
display('div-gpt-ad-1709668086344-0'); }); In handing down its ruling, the Sixth Circuit reviewed the differences between Cemex and Gissel. “While the Gissel standard instructs the Board (and reviewing courts) to order an election when a fair one is possible—staying true to the preferred method of effectuating Congress’s ultimate goal of preserving employees’ preferences—the Cemex standard looks only at whether a previous election was not fair,” the court said. ” Rulemaking is required The legal core of the Sixth Circuit ruling is that the NLRB overstepped its authority in creating Cemex through “adjudication” rather than a rulemaking process.
The NLRB does have “policymaking power” granted to it by Congress, the Sixth Circuit said. But it also needs to “follow precise procedural requirements. ” The ruling is not a sweeping change that impacts the NLRB’s decision-making authority.
It is now a precedent for the Sixth Circuit, which consists of Kentucky, Tennessee, Ohio and Michigan. ” Teamsters using authorization cards The Teamsters have been celebrating organizing wins through various news releases on its website. But few of those victories appear to have been achieved through a traditional election, as most are not backed up with an NLRB record of an election.
That suggests that the submission of authorization cards by the rank-and-file is leading the Teamsters to claim victory. For example, the Teamsters web page has a press release posted last month that said workers at Temco Logistics in Lithonia, Georgia, which does work primarily for Home Depot (NYSE: HD) , had decided to join the Teamsters. display('div-gpt-ad-1665767872042-0'); }); There is an NLRB record of an election for Temco.
But it is for an election that was to be held this Friday but is now under protest from Temco. Whether that election occurs doesn’t change the fact that the Teamsters, to a certain degree, already claimed victory despite no vote being held, presumably through submission of authorization cards. The lack of an election does not mean the unionization that the Teamsters are claiming has no basis.
But that basis appears to be the Cemex precedent, and it has now taken a hit. An email to the Teamsters had not been responded to by publication time. The Michael Best analysis of the ruling reiterated the limited geographic reach of the decision on Cemex.
“It does not invalidate the framework nationwide,” the law firm said. ” More articles by John Kingston Derek Barrs defends FMCSA’s bold moves at TCA What’s going on at the Louisiana staged truck accident trial?
