The National Labor Relations Board (NLRB) has taken two affirmative steps to cement the Cemex doctrine into current labor law. First, the NLRB Office of General Counsel, headed by Jennifer A. Abruzzo, issued Memorandum GC 24-01, Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific LLC. Abruzzo stated in the guidance that “the Cemex Board took issue with the prior focus on the potential impact of an employer’s unfair labor practices upon a future election, as experience showed that it created perverse incentives for employers to delay or disrupt election processes and to put off indefinitely its obligations to bargain,” and in response to such concern, “the Cemex Board…appropriately focused on the current time period – the time of card solicitation and the runup to the initial election – so that employers would be incentivized not to commit unfair labor practices in response to a union campaign both before and after the filing of the election petition.”
Doubling down on its effort, the Board denied a request by Cemex Construction Materials Pacific, LLC to reconsider its August 2023 decision. The November 13, 2023 Order, 372 NLRB No. 157, *1 (N.L.R.B. November 13, 2023), found that Cemex had “not identified any material error or demonstrated extraordinary circumstances warranting reconsideration under Section 102.48(c)(1) of the Board’s Rules and Regulations.”
As a brief summary, CEMEX Construction Materials Pacific LLC, 372 NLRB No. 130 (N.L.R.B. August 25, 2023), involved 366 ready-mix cement truck drivers and driver trainers. The drivers and trainers showed support for a union in their cards, with over 200 employees in support of unionization. A subsequent election, however, showed the employees voted against unionization by a count of 179 – 166. The union alleged the employer engaged in “extensive unlawful and otherwise coercive conduct before, during, and after the election,” and recommended setting aside the election, and permitting the union several special access remedies prior to the rerun election. Ultimately, the Board explained that due to the detrimental impact the employer’s actions would have on employee’s comfort in going through a rerun vote, a remedial bargaining order was appropriate.
The guidance from the NLRB (See GC 24-01) provides clearly that “If a demand is made and an election petition is filed by the employer and/or the union, and the employer commits an unfair labor practice(s) during that time period, which renders a recent or pending election a less reliable indicator of current employer sentiment than a current alternative nonelection showing, the petition(s) – whether filed by the employer and/or the union – will be dismissed and the employer will be subject to a remedial bargaining order.”
The guidance noted that even one unfair labor practice during the unionization process before an election could result in a bargaining order to the employer, and an election will be set aside “unless the violations are so minimal or isolated that it is virtually impossible to conclude that the misconduct could have affected the election results.” In reviewing “conduct disruptive of the election process,” the Board will look to “the relevant factors, including the number of violations, their severity, the extent of dissemination, the size of the unit, the closeness of the election (if one is held), the proximity of the misconduct to election date, and the number of unit employees affected.”
This monumental shift in Board law creates several pitfalls for employers when facing unionization efforts. The most prudent action for any employer is to consult their labor attorney, such as those with Kollman & Saucier, if they suspect unionization is taking place at their facility.