The NLRB’s Cemex Decision: A Win for Workers

On August 25th, 2023, the National Labor Relations Board (NLRB) announced a new framework for deciding under what circumstances employers must bargain with a union without a representation election. Previously, if an employer was found to have committed some illegal act during the election process that interfered with the election, the election would be run again. Under the new rules, rather than running a new election, the election would be immediately canceled and the employer will be forced to bargain as if the union had won the election. This new framework arose from a NLRB ruling over unionization efforts surrounding Cemex Construction Materials Pacific, LLC, who was ordered to bargain with a union after it was ruled that they committed “extensive unlawful and otherwise coercive conduct” in its efforts to prevent unionization. Cemex’s ready-mix concrete drivers had attempted a union election campaign, but unfair practices such as threatening to fire employees for having union stickers on their hats caused the NLRB to rule against Cemex and determine that they had committed illegal anti-union practices.

The NLRB’s decision in Cemex will be excellent for unionization, resulting in increased benefits and quality of life for workers. Unfair election practices are a frequent trouble in union election campaigns, with data suggesting that violations of national labor law occur in over ⅖ of all union campaigns. Some of these actions include threatening or coercing workers, firing workers, or disciplining them solely for engaging in union activity. It is important to note that these are only reported incidents, and the actual occurrence of illegal activity could be even larger. While ⅖ of campaigns included violations that were actually charged, union organizer allegations suggest that the proportion of campaigns with incidents could be as high as 89%. Through these illegal acts, employers suppress the prevalence of unions through coercion and ensure that workers have less power to bargain with employers to get stronger wages, benefits, and protections.

The benefits that unionization brings to employees are well established. Unionized workers earn 10.2% more than non-unionized workers in the same industry. This comparison holds even when holding variables like experience, education, and occupation the same. Unionized workers are also “18.3% more likely to have employer-sponsored health insurance” compared to non-union workers. Other benefits to union workers include being more likely to have advanced notice of a work schedule, being more likely to have an employer-provided pension plan, and having higher amounts of vacation time and paid leave. They also reduce overall wage inequality, as the wage increase effect for union workers is largest for low-skill workers who are paid less than high-skill workers, closing the gap between the highest and lowest earners in our economy. By forcing more elections to swing in the union’s favor, the Cemex decision ensures that more workers will receive the benefits that unions bring.

The Cemex decision has earned significant pushback from employer advocate organizations, with some referring to it as overturning significant precedent or harming employee rights by preventing access to a full election process. These arguments should not be taken as good faith. Given the long and storied history of employer pushback against union efforts, resorting to threats of violence, coercion, and a great number of illegal practices, there has never truly been a time where it could be said that union elections are broadly representative of actual employee opinion. The Cemex decision represents a new precedent that will prioritize the interests of the employees, ensuring them better access to the benefits of unionization, and defending them from violations committed by employers looking to exploit their workers as much as possible.

The views expressed in this publication are the author’s own and do not necessarily reflect the position of The Rice Journal of Public Policy, its staff, or its Editorial Board.