Unionizing Post-Cemex
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Just earlier this month, SAG-AFTRA approved a deal to end the monumental strike that lasted over 100 days. Actors, writers, and other media professionals were on strike to protest the companies represented by the Alliance of Motion Picture and Television Producers (AMPTP). Some of the most critical issues SAG-AFTRA was fighting for included protection against Artificial Intelligence and adequate compensation from streaming services. Since the strike has highlighted problems within the entertainment industry, a formerly unrepresented sector of the industry – Visual Effects (VFX) Artists – has unanimously voted to unionize.
Amid the strikes and calls for unionization, an extremely important NLRB decision was released in late August, Cemex Construction Materials Pacific, LLC. The Board announced a new framework for determining when employers are required to bargain with unions without an election. When a union requests recognition based on a majority of employees designating the union as a representative, an employer has two options: (1) immediately recognize and bargain with the union or (2) file a petition to seek a ballot election. Before the Cemex decision, if an employer committed an unfair labor practice (ULP) during the election, the NLRB would call for a re-election. Now, the Board will automatically require the employer to recognize the union.
This decision may make the path for union organizing easier within unrepresented workplaces, some believing this will ensure fair elections or provide another path when faced with hostility from the employer. Chairman of the NLRB, Lauren McFerran, stated, “Under Cemex, an employer is free to use the Board’s election procedure, but is never free to abuse it—it’s as simple as that.” Common tactics that companies have used to oppose unionization include holding captive-audience meetings, threatening to fire employees who unionize, and hiring “support managers” to monitor potential union activity. Post-Cemex, employers will have to ensure any action they take during a union election will not affect employees’ rights to protected concerted activity. It is currently unclear what exactly would violate this new standard, but the aforementioned tactics will surely be challenged.
On the other hand, there are employer-side concerns that this decision will negatively impact employee free choice. Critics argue that secret-ballot elections are integral to preserve workplace democracy. The Cemex decision will likely face legal challenges. As discussed more in depth in Board Member Kaplan’s dissent, this decision will likely increase litigation over alleged employer violations and ULPs. Kaplan argued that the Board implemented a zero-tolerance standard that “will not withstand appellate scrutiny.”
With Board decisions shifting to protect workers’ rights and the ongoing support for the writers’ strike, we can expect to see higher rates of unionization both within the entertainment industry and within other sectors. Disney VFX workers are the first, voting to join the International Alliance of Theatrical Stage Employees (IATSE) to ensure sustainable working conditions. As one of the few on-set crews who remained non-union, VFX workers reported no overtime protections, few to no meal breaks, and a lack of healthcare coverage, among other issues.
VFX workers have been vocal about expanding their unionizing effort to more studios. “The hope is to try and set an industry standard contract for all work,” Mark Patch, a key IATSE organizer, reported, “This is not about Marvel or Disney, this is about VFX workers throughout Hollywood and demanding respect for the work that we do.” Employees can use the Cemex decision in their favor, ensuring that studios and VFX vendors adhere to the more stringent standard during the election period.
Although the SAG-AFTRA strike recently came to a close, the fight is long from over. We can expect a period of contract negotiations for newly-unionized VFX workers, and more litigation following the Cemex decision.
Suggested Citation: Hannah Young, Unionizing Post-Cemex, Cornell J.L. & Pub. Pol’y, The Issue Spotter (November 20, 2023), https://live-journal-of-law-and-public-policy.pantheonsite.io/unionizing-post-cemex/.
Hannah Young is a second-year law student at Cornell Law School. She graduated from Cornell University with a degree in Industrial and Labor Relations. Aside from her involvement with Cornell Law School’s Journal of Law and Public Policy, she is involved in the Women’s Law Coalition and serves as a student representative on the faculty Wellness Committee.