NLRB injects Cemex into new representation proceedings framework

Cemex Construction Materials Pacific LLC is at the center of legal proceedings likely to extend into 2024, or beyond, and determine National Labor Relations Board latitude in ordering employers to bargain with a union and holding them to a zero tolerance standard for even minor National Labor Relations Act (NLRA) violations. 

A new NLRB framework for determining when employers are required to bargain with unions absent a representation election was announced concurrent with a late-summer decision affirming prior agency findings of unfair labor practices by Cemex Construction Materials Pacific. 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 Cemex Construction Materials Pacific LLC and International Brotherhood of Teamsters 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,” said Board Chairman Lauren McFerran. “Under Cemex, an employer is free to use the Board’s election procedure, but is never free to abuse it.”

“The NLRB made the right decision,” added International Brotherhood of 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.”

Less than a week after NLRB issued what the Teamsters officials view as a landmark case for the labor movement, Cemex counsel petitioned the U.S. Court of Appeals for the District of Columbia Circuit to review Cemex and Teamsters, arguing: “The Decision and Order against is not supported by substantial evidence and is contrary to law. Additionally, the NLRB’s dramatic modification to the union representation process and remedial framework for unfair labor practice charges committed during the critical period preceding a representation election is inconsistent with the National Labor Relations Act.”

Depending on the Appellate Court’s response to the petition, Cemex counsel arguments might parallel certain positions of Board Member Marvin Kaplan. In a partial dissent to the Cemex and Teamsters majority, he assesses how his colleagues’ new union representation proceedings standard impacts bargaining unit secret-ballot elections. The new Cemex standard informing agency officials’ orders on union representation elections or rerun elections, he observes:

  • Revisits terms of the 1949 NLRB decision, Joy Silk Mills, applied to proceedings where employers are found to have committed National Labor Relations Act-defined unfair labor practices.
  • Overturns a 1974 standard, Linden Lumber, setting procedures for organizers responding to employers who refuse to recognize a union when presented with authorization cards amounting to a bargaining unit majority. Linden shifts the burden of filing a representation election petition from the union to the employer.

“The changes my colleagues either propose or implement will predictably result in many more card-based bargaining orders and far fewer representation elections. Under the majority’s new standard, where the results of an election are set aside based on unfair labor practices, there is no longer any such thing as a rerun election,” Kaplan writes. Cemex conflicts with Supreme Court and lower court precedent, he adds, as the employee rights that Congress placed at the heart of the NLRA are “better served by Board-conducted secret-ballot elections than by union authorization cards.”

He also questions the Cemex standard’s limitation on employers who elect to submit RM petitions—those requesting NLRB regional offices to schedule and administer representation elections. By suggesting that even a single unfair labor practice an employer commits from the filing of an RM petition to the election will lead to a bargaining order, Kaplan contends, the Board “has effectively implemented a zero-tolerance standard. The [District of Columbia Circuit Court] has found that a zero tolerance standard to maximize deterrence regardless of the circumstances ‘cross[es] the line from a permissible remedy . . . to an impermissible punitive measure’ beyond the Board’s authority.”

Kaplan concludes his dissent noting how certain unfair labor practices warrant remedies by Cemex, but that the case itself—centered on an election conducted more than four years ago—should be remanded to the NLRB Regional Director “with instructions to direct a second election at a time he deems appropriate.”