Monday, October 23, 2023

Is this what the future of union organizing looks like?

Last week, the employees of Creature Comforts Brewing Co. voted by a margin of 32-21 to reject the Brewing Union of Georgia as their bargaining representative and for their workplace to remain union-free. The National Labor Relations Board conducted and supervised the secret-ballot election, and the result presumes to reflect the choice of Creature Comforts' employees.

Except maybe that secret-ballot election is not the choice of Creature Comforts' employees?

I fully expect BUG to file a petition with the NLRB seeking a Cemex bargaining order. What is a Cemex bargaining order, you ask? 

Before the NLRB decided Cemex Construction Materials Pacific earlier this year, the NLRB would remedy most unfair labor practices committed during an organizing campaign by ordering a re-run election. Cemex, however, did away with re-run elections and instead determined that the Board would simply certify the union as the employees' representative and issue a bargaining order to remedy any such unfair labor practices.

Indeed, that is just what an NLRB administrative law judge recently ordered in I.N.S.A. Inc. Like Creature Comforts, I.N.S.A. won its union election. Post-election, however, the ALJ concluded that it had committed unfair labor practices, including discharging and disciplining pro-union employees. The ALJ rejected the employer's argument that its conduct was justified because employees had violated company policy. Instead, the judge ruled that the company's conduct "irreparably harm[ed] the organizing effort and undermine[d] the integrity of the election process." Accordingly, the judge ordered under Cemex that the results of the election be overturned and that the employer immediately recognize and bargain with the union.

The Creature Comforts organizing campaign was rife with allegations of unfair labor practices, including claims that the brewery suspended and fired pro-union employees. Although I have no inside information, I fully expect BUG to seek and obtain a Cemex bargaining order as a result of these pending alleged unfair labor practices. The employees of Creature Comforts likely are going to end up with a union whether they want one or not.

This is what the future of union organizing looks like. Employers, you've been warned. Even if you win the election battle you might lose the organizing war. Thus, it more critical than ever that you get a labor lawyer involved as early as possible — and preferably before a union even shows up at your door — to help ensure that you commit zero unfair labor practices so that you are best positioned to avoid this impact of Cemex.