Under Cemex, NLRB rebrands protocol for union representation proceedings

Sources: National Labor Relations Board; International Brotherhood of Teamsters, Washington, D.C.; CP staff

A new National Labor Relations Board framework for determining when employers are required to bargain with unions absent a representation election was announced concurrent with a late-August decision affirming prior agency findings of unfair labor practices by Cemex Construction Materials Pacific LLC. In March 2019, mixer truck drivers and driver trainers at 24 Cemex ready mixed concrete plants in Ventura County, Calif. and Las Vegas voted 179-166 against International Brotherhood of Teamsters representation. The tally contrasted with organizers’ late-2018 gathering of authorization for representation cards with which 207 proposed bargaining unit members expressed union support—triggering a petition for the balloting that followed three months later.

Teamsters officials and the NLRB General Counsel challenged the outcome, alleging numerous instances of unfair labor practices by Cemex managers. An administrative law judge’s December 2021 decision delineated the National Labor Relations Act sections those practices violated. In their August 2023 order, Board Members observe: “Based upon the complaint allegations and record, we conclude: (1) the Respondent [Cemex] refused the Union’s request to bargain; (2) at a time when the Union had in fact been designated representative by a majority of employees; (3) in a concededly appropriate unit; and then (4) committed unfair labor practices requiring the election to be set aside, violating [NLRA] Section 8(a)(5) under the standard we announce today.”

Dubbed Cemex, the standard holds: “When a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election. However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and—rather than re-running the election—the Board will order the employer to recognize and bargain with the union.” Cemex supersedes Joy Silk, which has evolved since 1949 and required an employer to bargain with a union unless it had a good-faith doubt of the union’s majority status. 

The revised framework represents an effort to better effectuate employees’ right to bargain through their chosen representative, NLRB contends, while acknowledging that employers have the option to invoke the statutory provision allowing them to pursue a Board election. “When employers pursue this option,” Members stipulate, “the new standard will promote a fair election environment by more effectively disincentivizing employers from committing unfair labor practices.”

In their just-released decision, they affirm the administrative law judge’s 2021 findings and order Cemex to bargain with the Teamsters for a contract covering Ventura County and Las Vegas plant drivers and driver trainers. “The decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair environment,” says Board Chairman Lauren McFerran. “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.”

“The NLRB made the right decision,” adds Teamsters General President Sean O’Brien. “We look forward to negotiating with Cemex—regardless of whether or not the company looks forward to negotiating with us—so these men and women can demand their worth and fight for the fantastic wages and benefits that other Teamster ready-mix drivers throughout California and Nevada already have.”

The Board decision and order could face legal challenges from Cemex, whose arguments might include facts Members acknowledge in course of their 2022-2023 case review: Ahead of the fourth anniversary of the election, most notably, the bargaining unit had expanded from 366 to just under 400 employees, nearly half of whom were not among eligible voters in the March 2019 representation election.

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