Subject: Coming Soon: The Cemex Decision: LRI INK

August 24, 2023

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Coming Soon: The Cemex Decision

by Michael VanDervort

Seismic Shift in Labor Law?

The American labor scene is poised for a seismic shift. All eyes are on the Cemex case at the NLRB, which could be the most radical change in labor law since the 1960’s.  As General Counsel Jennifer Abruzzo's 2022 brief indicated, unions would get a huge lift.


Brace yourself if you're at the helm of labor relations in a U.S. company. The buzz is that the Board will drop its verdict on Cemex before Gwynne Wilcox's term concludes on August 28th. This decision could ease the path for unions to organize and reshape the conventional dialogue between employers and employees on labor matters.


Given the significant potential impact that this could have, we wanted to provide you with a preview of what these changes could look like, worst. As soon as we see the specific decision, we will notify you and follow up with guidance on how to respond very quickly including a newsletter and a webinar. 

Decoding the Cemex Decision and the Joy Silk Doctrine

Let's delve into what the Board may change in the coming days:

The Cemex case might redefine employer-employee interactions, restrict obligatory union discussions, and breathe life back into the Joy Silk doctrine. Here's a breakdown:

  • Joy Silk Explained: Stemming from a 1949 NLRB ruling, the Joy Silk doctrine emphasized the weight of union authorization cards. If a union presented cards from the majority, employers had to either express "good faith doubt" about the union's majority status or recognize the union. The Cemex case would reinstate the Joy Silk standard, potentially allowing unions to sidestep NLRB elections in favor of card-check authorization.

  • Captive Audience Meetings: The Cemex decision might also prohibit captive audience meetings, which are mandatory group or 1:1 meetings where employers discuss union-related topics with employees. Prohibiting these meetings, which the 1947 Taft-Hartley Act legitimized, would curtail employers' capacity to shape opinions on unionization.

  • The Tricast Twist: The Tricast doctrine allows employers to tell employees they lose the ability to talk directly to management if they vote for a union. In Cemex, the General Counsel is asking the Board to reverse this doctrine and require employers, anytime they bring up the changed relationship, to also inform employees of their right to bring individual grievances to an employer when represented. This change will require managers to be very careful when they discuss how unions change the relationship between the company and employees.

We will be back with further updates as soon as they develop.

Breaking: NLRB Issues Revised Final Rule for Union Elections

by Michael VanDervort

As expected, the National Labor Relations Board today issued a new Final Rule for Union Elections.  We will have more on this later, but for now, here is the press release from Board Chair Lauren McFerran.


The National Labor Relations Board today adopted a Final Rule amending its procedures governing representation elections.  This Rule largely reverses the amendments made by the Board’s 2019 Election Rule, which introduced new delays in the election process.   The new rule returns the Board’s key election procedures to those put in place by a 2014 rule that was adopted using a notice-and-comment process and that was uniformly upheld by federal courts.  Last year, the United States Court of Appeals for the District of Columbia Circuit struck down parts of the 2019 Rule, and the Board has already rescinded those provisions.


“It is a basic principle of the National Labor Relations Act that representation cases should be resolved quickly and fairly,” said Chairman Lauren McFerran.  “By removing unnecessary delays from the election process, the new rule supports these important goals, and allows workers to more effectively exercise their fundamental rights.”


The new rule will meaningfully reduce the time it takes to get from petition to election in contested elections and will expedite the resolution of any post-election litigation.  Highlights of the new rule’s changes include:

  • Allowing pre-election hearings to begin more quickly;

  • Ensuring that important election information is disseminated to employees more quickly;

  • Making pre- and post-election hearings more efficient; and

  • Ensuring that elections are held more quickly.

As with prior changes to the Board’s election processes, the new rule will become effective four months from the date of publication to ensure adequate time for the NLRB’s Regional offices to implement the new procedures.  A companion rule also ensures that two provisions of the 2019 Rule that had been previously enjoined by a federal district court, but were scheduled to become effective on September 10, 2023, will not take effect.  The new rule rescinds those provisions.


The final rule was approved by Board Chairman Lauren McFerran and Members Gwynne A. Wilcox and David M. Prouty.  Board Member Marvin E. Kaplan dissented.  The rule will be published in the Federal Register on August 25, 2023 and will take effect on December 26, 2023.

View a fact sheet about the new rule.

Trends In Organizing: From Crafts To Cannabis And A Curious Exception

by Kimberly Ricci

The union heat is on in more ways than one this summer. The Teamsters and UAW applied pressure for new national contracts with UPS and the Big Three under threat of strikes. Media attention is running high for picketing baristas, nurses, hotel staff, dockworkers, stadium employees, food service workers, and writers and actors


Clearly, workers’ existing frustrations are not fading in a time of inflation. Certain groups like the Democratic Socialists of America might be capitalizing upon this discontent by ramping up placement of paid union salts. Reportedly, thousands of DSA members recently “expressed interest” in infiltrating union-free workplaces. Whether these prospective salts will have newsworthy effects remains to be seen, but in the meantime, these organizing developments are worth a roundup:

  • A Michaels arts and craft store saw workers file for a union vote at a  Massachusetts location, a first for this particular retailer. 

  • Museum organizing remains on the rise with three dozen institutions across the U.S. either unionized or are in the process of doing so. This includes UAW-targeted establishments like the Guggenheim Museum and New Museum in NYC as well as Mass MoCA. Organizing workers cite low pay in cities with high housing costs, and they want a slice of increased admission prices.

  • Philadelphia Orchestra singers unionized after a 20-month organizing drive.

  • Cannabis workers continue to organize with 70 workers at a Connecticut grower and producer joining the United Food and Commercial Workers. What’s key in this case: the state’s adult-use cannabis law, which mandates “labor peace agreements” (in other words, union neutrality agreements) from companies. 

  • Mushroom workers, formerly employed by Ostrom Farms, allege that they were laid off as retaliation for joining the United Farm Workers. The workers claim that the union vote led Ostrom to shutter the property and sell it to Windmill Farms.

  • Will Big Law associates join the union wave? Probably not. Associates recently voted to unionize at two small firms. Public service and government attorneys are also no stranger to unionizing, but when it comes to larger private firms, 24/7 work schedules are the norm with high salaries to match. That combination, so far, has insulated Big Law from union activity among associates, especially at firms where competition for jobs is intense. 

Meanwhile at Chicago-based tortilla manufacturer El Milagro, the company has thus far stayed union free with a twist. Workers campaigned on their own behalf for higher wages and better conditions, and they have claimed victories. Workers also filed complaints with the NLRB over seven-day workweeks and other issues, for which the workers and company reached a settlement without a union in the middle.


These workers received assistance from Arise Chicago, an advocacy group for non-unionized workers. A company spokesperson, however, declared that “changes have resulted from its own worker outreach,” rather than through Arise Chicago. As for why unions do not appear to have targeted El Milagro, the answer is complicated, although clearly, the workers appear to be doing well for themselves without a union’s interference.

One Fair Minimum Wage? Workers Should Be Wary Of What Unions Wish For

by Kimberly Ricci

Earlier this year, we told you about a group of Michigan waitresses who expressed worries over a proposed law that would abolish the tipped minimum wage in the state. Servers and bartenders would then make the same amount per hour as back-of-house or guest service workers, and these waitresses realized that raising the minimum wage can, in some instances, hurt workers.


A Michigan judge has since stepped in and preserved the existing tipped minimum wage, undoubtedly to the relief of servers, who had explained that boosting their wage from around $3.75 to $12 per hour would have actually caused them to earn less money, since customers would be inclined to tip less. The workers countered that they would be better off rolling the dice with tips, and the judge appeared to agree. 


Rulings like these have yet to deter groups like One Fair Wage, which has already lobbied – either by ballot or legislative action – to raise the tipped minimum wage (which the group notes as the “sub-minimum wage”) in 25 states and counting. The group is helmed by Saru Jayaraman, who argues that workers need advocates in the absence of unions. The group, however, wields union-style tactics, much like the Fight For $15 and similar campaigns funded by the SEIU and UNITE HERE.


Those campaigns are finding some success. Eight states have thus far abolished the tipped minimum wage. That includes Alaska ($10.85) and California ($15.50) with the latter facing a 2024 ballot measure to raise minimum wage to $18, and that says nothing of the on-hold effort of $22 per hour for fast food workers. Such moves hinder the ability of franchisees and small business owners to continue operations. Businesses can only pass increased labor costs onto customers to a certain degree, after all.


In Chicago, the SEIU has ceased to be content with Fight For $15, so the union lobbied Chicago politicians for a $25 minimum wage. That battle has intensified with Mayor Brandon Johnson openly wearing a One Fair Wage apron to boost efforts for tipped employees to earn the city’s standard $15.80 minimum wage. One Fair Wage swooped in for a mid-August informational meeting to woo tipped employees, although opponents have warned that eliminating tipped wages would cause restaurants to shutter, thereby harming businesses, workers, and Chicago itself.


A few more minimum wage odds and ends: 

  • Theme park and hotel workers could be boosted to $25 per hour (up from the current $16.90) in L.A. County if the Board Of Supervisors answers the call of UNITE HERE. That wage would rise to $30 per hour by 2028. 

  • Minneapolis app-based rideshare drivers could soon land their own minimum wage based upon mileage and time. The issue now sits with the city council.

Yes, Bernie Sanders is still dreaming: The democratic socialist senator is pushing a $17 federal minimum wage workers while citing inflation. This, of course, would be a massive leap from $7.25, which has been in effect since 2009.

Leadership Bits And Bytes: Diving Into Modern Leadership Trends

by Michael VanDervort

Staying updated with the latest insights and strategies is crucial in the ever-evolving leadership landscape. This month, we've curated a selection of articles that touch upon various facets of leadership, from upskilling and DEI initiatives to the changing roles of managers. Dive in!


Upskilling: Bridging the Talent Gap
Source: Reworked.co


With a growing talent shortage in the tech sector, upskilling the existing workforce emerges as a viable solution. Leaders now focus on aligning skills with business goals and ensuring continuous evaluation.


Engaging DEI Skeptics: A Three-Pronged Approach
Source: Entrepreneur


Diversity, Equity, and Inclusion (DEI) are more than just buzzwords. To truly engage skeptics, it's essential to understand their perspectives, seek their support directly, and offer tangible ways they can contribute.


The Evolving Role of Middle Management
Source: McKinsey & Company


Middle managers are the linchpin of organizational success. Their role transforms, emphasizing coaching, motivating, and strategic planning over administrative tasks.


The Radical Promise of Truly Flexible Work
Source: Harvard Business Review


The future of work is flexibility. Beyond work location and hours, it's about ensuring that work fits the individual, leading to more productive and inclusive organizations.


The Simple Power of Communicating with Kindness
Source: Harvard Business Review


In our fast-paced world, genuine connections are eroding. Leaders now advocate for "gracious communication," emphasizing small gestures and fostering genuine connections.


The Big Shift: How Managers' Jobs are Changing and How to Adapt
Source: Reworked.co


The managerial landscape is undergoing a radical transformation. Managers are evolving into relationship builders, guides during uncertain times, virtual team facilitators, innovation catalysts, and high-impact team leaders.


The Future of Middle Management
Source: McKinsey & Company


Middle managers are more than just a bridge between top leadership and frontline employees. They drive performance, foster communication, and ensure smooth operations, making them indispensable in today's dynamic work environment.


4 Simple Steps to Solve Workplace Negativity
Source: Approachable Leadership


Workplace negativity can be a significant challenge, but with the right approach, it's manageable. Leaders are encouraged to address negativity directly, assume positive intent, actively listen to concerns, ask clarifying questions, and remain open to changing their perspectives. By embracing these strategies, leaders can transform negative situations into opportunities for growth and collaboration.


Conclusion:
Modern leadership is multifaceted. It's about adapting to change, fostering inclusivity, upskilling teams, promoting flexibility, and communicating with kindness. As the business landscape evolves, leaders who embrace these principles will undoubtedly lead their organizations to success.

About Labor Relations INK

Labor Relations INK is published weekly and is edited by Labor Relations Institute, Inc. Feel free to pass this newsletter on to anyone you think might enjoy it. New subscribers can sign up by visiting here.


If you use content from this newsletter, please attribute it to Labor Relations Institute and include our website: http://www.LRIonline.com 


Contributing editors for this issue: Phillip Wilson, Greg Kittinger, Michael VanDervort, and Kimberly Ricci 


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About Labor Relations Institute

LRI exists to help our clients thrive and become extraordinary workplaces. We improve the lives of working people by strengthening relationships with their leaders and each other. For over 41 years, LRI has led the labor and employee relations industry, driven by our core values and our proven process, the LRI Way.

 

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