The Cemex Doctrine: A Renewed Deterrence Against Unfair Labor Practices

Standing before the Supreme Court in 1969, Associate General Counsel to the National Labor Relations Board (NLRB) Dominick Manoli would transform national labor relations in a single oral argument. Overturning two decades of labor law precedent, Manoli argued that the NLRB no longer needed to hold employers to a “good faith” standard when dismissing union representation, implying in such sentiment that the position of the NLRB had changed in between the filing of the brief and his oral argument. [1] Manoli ultimately struck down the Board’s long-held position, based on precedent established in Joy Silk Mills v. National Labor Rel. Board (1949). This position—the Joy Silk doctrine—held that an employer was obligated to recognize and bargain with a designate representing a majority of their employees—unless the employer had a “good faith” doubt of that majority, as stated in Section 8(d) of the National Labor Relations Act of 1935 (NLRA). [2] Yet, Manoli’s actions, which resulted in NLRB v. Gissel Packing Co., Inc. (1969), replaced the Joy Silk bargaining orders with Gissel bargaining orders, which can only be applied in much more extreme and restrictive conditions.

Manoli’s argument continues to incite controversy in the halls of the NLRB as current General Counsel of the NLRB Jennifer Abruzzo claims that Manoli’s argument is a misrepresentation of Board policy that should be reversed. More specifically, in a brief filed on April 11, 2023 in the case of Cemex Construction Materials Pacific (2023), NLRB Attorney Fernando Anzualda claimed that Manoli “misrepresented controlling Board law regarding the Joy Silk doctrine.” [3]  A year after the brief, the NLRB followed through with a decision on the Cemex case, potentially transforming the terrain of labor relations by strengthening deterrence against illegal anti-union practices. The decision not only allows the Board to more effectively encourage fair union elections; it also permits deterrence against a wide range of Unfair Labor Practices (ULPs) described in Section 8(a) of the NLRA. [4] While I will argue that the new “Cemex doctrine” established by the aforementioned decision is consistent with the Supreme Court’s precedent related to Board jurisdiction over interpretation of the NLRA, there remains a possibility that the Supreme Court will strike down the new Cemex doctrine, as this relatively pro-labor doctrine is saddled with heavy partisan baggage.

The original basis for the Joy Silk doctrine arose out of section 8(a)(5) of the National Labor Relations Act of 1935, also known as the Wagner Act, which deems an employer “refusing to bargain with the representative of his employees” to be an Unfair Labor Practice (ULP). [5] The doctrine states that the Board, the five-person body which interprets the NLRA, may “investigate such controversy” relating to issues of the “representation of employees” and “certify” a designated representative determined by a “secret ballot of employees, or […] any other suitable method.” [6] Under current interpretation of Section 9(c) of the NLRA, there exist two primary ways employee representatives, generally in the form of a labor union, can be recognized. The first is the employer’s voluntary recognition of a union, which usually occurs after a majority of workers sign union cards to demonstrate support for joining. However, in cases where employers choose not to recognize the claimed majority, under the Taft-Hartley Amendment, a petition for a Board-supervised union certification election can be called under certain conditions. In most cases, the onus is on the union; if the union collects signatures from more than 30% of employees indicating interest in unionization, an RC petition can be filed by the union, requesting a Board-supervised election in an orderly timeline. After a period of campaigning, a simple majority is needed for a union to be certified; without this majority, the union will not be recognized by the Board.

However, in the case that an employer refuses to recognize a union, Board-supervised elections are not and have never been the sole method of union recognition. From the passage of the NLRA in 1935 up until the Taft-Hartley Act in 1947, there has been another method of union recognition: bargaining orders. During this early period of the NLRB, the Board used bargaining orders to certify unions in cases where an employer rejects the “representative of its employees” without reason aside from an unwillingness to bargain. [7] The Taft-Hartley Act allowed employers to challenge unions with certification elections when faced with demands for recognition. [8] Joy Silk emerged as a response to this development, clarifying the remedy for Section 8(a)(5), which requires employers to bargain with a representative of a majority of their employees. Joy Silk established guidelines for what constituted “good faith” bargaining with unions, crucially indicating that ULPs committed by the employer during a unionization campaign would indicate a lack of “good faith” doubt, as underhanded and illegal techniques would not be necessary if there was a genuine lack of a union majority. Therefore, any ULPs committed after the employer’s refusal to recognize the union would warrant a bargaining order under Joy Silk.

In the Gissel decision, this “good faith” doubt test was removed due to Manoli’s argument. This was on the grounds of what Manoli called a “good-faith thicket,” as he determined that the NLRB had no ability to determine whether an employer’s rejection of a claimed union majority is based on “good faith” doubt in that majority. [9] This drastically reduced the NLRB’s ability to subsequently issue bargaining orders to employees, leaving orders as an “extraordinary remedy” used in situations where pervasive employer-side ULPs have compromised the election process to such a far extent that a fair election is not possible. [10] As established earlier, the argument made was inconsistent with the brief submitted to the Justices, and inconsistent with the Board’s interpretation, as Manoli’s arguments “flatly contradicted” the policy of the Board in its briefs on the case. [11]

Regardless, after Manoli’s argument, the Board entered a state of limbo in which the Supreme Court had affirmed a change in Board doctrine, even though no such change had taken place. That was until 1971, when the Board affirmed Associate General Counselor Manoli’s rejection of Joy Silk bargaining orders in Linden Lumber Division, Summer & Co., (1971). Further, the Supreme Court affirmed the NLRB’s ruling in Linden Lumber Division, Summer & Co. v. NLRB (1974), which affirmed the NLRB’s change in doctrine, notably on the basis of its jurisdiction in interpreting the NLRA rather than any claims that the change in doctrine may better accomplish the aims of the NLRA. For decades afterwards, the NLRB has been relegated to largely reactive measures rather than a preemptive deterrence to discourage ULPs.

In Board-supervised elections, without the threat of sanction and punishment for Unfair Labor Practices, employers have historically engaged in legal but intimidating activities such as individual closed-room meetings, as well as illegal activities such as firing employees for pro-union speech. Critically, a 2019 Santa Clara Law Review article by labor lawyer Brian Petruska found compelling evidence that the number of ULPs conducted by management “rose with unprecedented speed” after Gissel, as a direct consequence of the removal of one of the Board’s strongest forms of deterrence against them. [12] It is these facts which guide the approach of Biden appointee NLRB General Counsel Jennifer Abruzzo in her brief on the Cemex case.

In the the Cemex case, workers at 23 workplaces of Cemex Construction Materials Pacific, LLC sought to unionize; however, the employer used “coercive” and “illegal” practices to “methodically erode” support for the union leading up to the election, including firing a vocally pro-union employee — a violation of section 8(a)(1) and (3).The Cemex ruling comes a year after a brief issued by an attorney under General Counsel Abruzzo, calling for the board to “reinstate the doctrine under Joy Silk Mills, Inc.” on the basis that current Board policy has failed to “deter unfair labor practices […] and provide for free and fair elections.” [13] This provides the basis for the partial return of Joy Silk’s ULP deterrence, by expanding the criteria for which a bargaining order can be issued during a union recognition campaign in order to better protect workers’ rights to organize.

The grounds for such an action come from court precedent, claiming that the Board has “substantial deference” from the Supreme Court in interpreting the NLRA, and therefore can choose to reinstate the Joy Silk Doctrine. [14] Indeed, in the past, the Board’s interpretation of the NLRA has been subject to “limited judicial review” as long as its “construction of a policy is permissible under the [NLRA].” [15] In Linden Lumber, this was affirmed, as the majority of Justices found that the Board did not “abuse [its] discretion” in making the decision to overturn Joy Silk but did not positively affirm it. Furthermore, the four dissenting Justices found that it was actually contrary to the “duty to bargain” found in the NLRA, a duty that cannot be “defeated by the Board’s policy.” [16] Further, there is no basis in new legislation for the abandonment of Joy Silk as no new legislation pertaining to private-sector collective bargaining and labor-management relations has passed Congress since Taft-Hartley. Rather, it is purely a question of the NLRB’s interpretation of how to best serve its mission, as well as how it will enforce Section 8(d).

The Cemex case provided the grounds upon which the General Counsel could bring about the doctrine’s partial return. Indeed, the language of the Cemex decision appears to be fully consistent with the policy aims and language of the NLRA, avoiding the pitfalls of Joy Silk before it. While General Counsel Abruzzo called for the reinstatement of Joy Silk “in its original form,” the Cemex doctrine maintains critical differences from the original. [17] A key criticism of Joy Silk as well as similar card-check practices by employer groups is that it may “impose unions” by circumventing a secret-ballot election. [18] However, rather than requiring employers to prove their “good-faith” doubt in a union’s majority status at the cost of receiving a bargaining order upon a ULP petition, Cemex mandates employers to use a RM petition to request a Board-supervised certification election if it chooses to reject bargaining. Thus, the onus is now on the employer to file for a union election rather than the union. This move puts more pressure on the employer to recognize the union, if they truly lack “good-faith” doubt of the union majority or their ability to flip that majority by legal means. 

As General Counsel Abruzzo’s November 2, 2023 Memorandum states, this new doctrine is consistent with the NLRB’s dual aims in “effectuating ascertainable employee free choice and deterring employer misbehavior,” citing the Gissel decision. [19] In doing so, it is more consistent with the stated aims of the National Labor Relations Act after the Taft-Hartley amendments, in eliminating that infamous “good-faith thicket,” avoiding those grounds upon which Associate Counsel Manoli overturned Joy Silk. As long as employers avoid conducting ULPs, they may well request a secret-ballot Board-supervised secret ballot election to verify a union majority. This means that Cemex does not bring about card-check unionization; instead, what it does do is return a powerful deterrence against ULPs by employers. This comes in the form of the hypothetical carrot of Board-supervised union certification elections even after a majority of a bargaining unit have signed union cards, and the stick of the bargaining order if any ULPs are committed by the employer. This consistency with the aims and provisions of the NLRA, as previously stated, has been deferred to by the Supreme Court.

However, this may no longer be the case soon, given the particularly anti-labor tilt of the Roberts Court. In particular, the Roberts Court’s approach towards the “jurisdiction” given to the Board in interpreting the NLRA has been undermined by recent rulings. In the recent case Glacier Northwest, Inc., DBA CalPortland v. International Brotherhood of Teamsters Local Union (2023) the Supreme Court ruled in a 8-1 majority against the Teamsters, interpreting the NLRA to claim that the preemption doctrine of the NLRB does not prevent employers from pursuing tort suits against strikers for property damage conducted during a strike under state law. [20] This preemption doctrine, formulated from San Diego Building Trades Council v. Garmon (1959), designates activities “arguably” covered under Sections 7 and 8 of the NLRA to be the subjects that state and federal courts must “defer to the exclusive competence of the NLRB.” [21] Sections 7 and 8 cover the right to unionize for private sector workers and ULPs respectively, a broad swathe of the NLRB’s jurisdiction. In her lone dissent to the Glacier decision, Justice Ketanji Brown Jackson claims that the Supreme Court overrides “more than half a century” of precedent in “scrupulously [guarding] the Board’s authority.” [22]

While the jurisdiction of the NLRB in interpreting the NLRA by the Supreme Court has historically been respected, this may no longer be the case under the present Roberts Court. Indeed, while Justice Barett and Justice Alito affirm Garmon while delineating the NLRA’s applicability, Justice Thomas writes in his concurring opinion that this peculiar jurisdiction given to the NLRB is an “oddity” that the Supreme Court “should carefully reexamine.” Citing several cases, Justice Thomas argues that Garmon diminishes state’s ability to address labor disputes, as the purpose of Garmon was to establish a unified and well-informed federal labor policy. [23] In challenging the Garmon preemption doctrine, Justice Thomas signals an openness to challenging the broader regime of NLRB jurisdiction described by Justice Jackson.

While Cemex currently exists in a state of limbo, a law-of-the-land likely to face challenge in Federal Court, the impact of the doctrine is already being felt across the country. After the issuing of the Cemex decision, there has already been a noted increase in RM filings, from 32 in 2022 to 62 in 2023. [24] In addition, application of the new Cemex standard is already proceeding apace, as the Board’s decision applies retroactively to all open and pending cases. This has already yielded a ruling by an administrative law judge against cannabis dispensary I.N.S.A., where a union lost its certification election after a majority of employees indicated interest in unionization through a signed letter to the employer. Due to ULPs committed during the union organizing campaign, such as the 2021 firing of a lead union organizer, the judge indicated that under the “new standard” set by Cemex, the results of that election have to be “[set] aside” in favor of a “remedial bargaining order.” [25] It will be seen whether the employer takes the case to appellate court, where the rejection of the results of a past certification election in favor of a Cemex bargaining order will be put to the test. As more rulings are made and bargaining orders are issued under the Cemex doctrine, challenges are certain to come. These challenges may be on the basis of the overturning of precedents set in Gissel and Linden Lumber. However, as has been previously demonstrated, due to the jurisdiction given to the Board under these decisions, as well as Linden Lumber’s affirmation of non-election pathways to union recognition, challenges on these bases are unlikely to win in argument in appellate courts, despite strong appeals to “workplace democracy.” For now, labor organizers can catch a breath, knowing that the NLRB is ready to mete heavier accountability on employers for illegal union-busting practices.

Edited by Anusha Merchant

[1] Ian Ward. “The Lie That Helped Kill the Labor Movement.” POLITICO, July 6, 2022. https://www.politico.com/news/magazine/2022/06/07/the-lie-that-helped-kill-the-labor-movement-00037459.

[2] National Labor Relations Act of 1935, 29 U.S.C. §158 (1975).

[3] Fernando Anzaldua, National Labor Relations Board, Region-28, “Brief in Support of Exceptions,” April 11, 2023, 38. https://www.nlrb.gov/case/31-CA-238239.

[4] National Labor Relations Act of 1935, 29 U.S.C. §158 (1975).

[5] National Labor Relations Act of 1935, 29 U.S.C. §158 (1975).

[6] National Labor Relations Act of 1935, 29 U.S.C. §158 (1975).

[7] National Labor Relations Act of 1935, 29 U.S.C. §158 (1975).

[8] National Labor Relations Act of 1935, 29 U.S.C. §158 (1975).

[9] Linden Lumber Division, Summer & Co. v. NLRB, 419 U.S. 301 (1974)

[10] NLRB v. Goya Foods, 525 F.3d 1117, 1129 (11th Cir. 2008).

[11] Ward, “The Lie That Helped Kill the Labor Movement.”

[12] Brian J. Petruska, “Adding Joy Silk to Labor's Reform Agenda,” 57 Santa Clara L. Rev. 97 (2017): 129.

[13] “Brief in Support of Exceptions,” April 11, 2023, 5. https://www.nlrb.gov/case/31-CA-238239.

[14] “Brief in Support of Exceptions,” 37.

[15] “Brief in Support of Exceptions,” 40.

[16] Linden Lumber Division, Summer & Co. v. Nat'l Labor Relations Bd., 419 U.S. 301, 95 S. Ct. 429 (1974)

[17] “Brief in Support of Exceptions,” 37.

[18] “Secret Ballots.” Coalition for a Democratic Workplace, December 21, 2023. https://myprivateballot.com/issues/secret-ballots/.

[19] NLRB v. Gissel Packing Co., 395 U.S. 575, 614 (1969)

[20] Glacier Northwest, Inc. v. International Brotherhood of Teamsters. 598 U.S. __ (2023).

[21] San Diego Unions v. Garmon, 359 U.S. 236 (1959).

[22] Glacier Northwest, Inc. v. International Brotherhood of Teamsters, 598 U.S. __ (2023) (dissenting opinion).

[23] Glacier Northwest, Inc. v. International Brotherhood of Teamsters, 598 U.S. ___ (2023) (concurring opinion).

[24] “Filed Petitions,” National Labor Relations Board, Accessed December 30, 2023, https://www.nlrb.gov/reports/nlrb-case-activity-reports/representation-cases/intake/employer-filed-petitions-rm.

[25] “Administrative Law Judges Decision,” September 21, 2023, 2. https://www.nlrb.gov/case/01-CA-290558.