Is The Cemex Doctrine Is Here to Stay?

Mathew Moldawer
Mathew Moldawer
11/20/2023
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...
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Joint-Employer Rule Faces Early Legal Hurdle

Mathew Moldawer
Mathew Moldawer
11/16/2023
In September 2022, the National Labor Relations Board (NLRB) proposed a new rule to determine joint-employer status.  The new rule, adopted in October 2023, will take effect on December 26, 2023, and be applied prospectively.[1] One of the more controversial aspects of the new rule is that it removes the requirement that a putative employer actually exercise control over those essential terms and conditions of employment.[2]  In fact, an employer...
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NLRB Issues New Joint Employer Rule

The National Labor Relations Board (NLRB) released today its Final Rule regarding the Standard for Determining Joint-Employer Status under the National Labor Relations Act (NLRA).  The NLRB press release states: Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and...
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Employer’s Failure to Bargain with Union Proves Costly

Mathew Moldawer
Mathew Moldawer
10/05/2023
The National Labor Relations Board (NLRB) has ordered a hospital in Puerto Rico to rehire and provide back pay to eleven maintenance employees who it deemed were illegally terminated.  The September 30, 2023 decision from the three-member panel found that the employer, Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras violated Sections 8(a)(5) and (1) by its decision to subcontract the services performed by the Environmental Control...
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And So The Pendulum Swings: NLRB Revives Joy Silk From The Ashes

Mathew Moldawer
Mathew Moldawer
08/29/2023
The NLRB’s democratic majority struck a big win for unions by reviving the precedent set in the 1949 NLRB decision, In re Joy Silk Mills, Inc., 85 N.L.R.B. 1263 (1949).   Using Cemex Construction Materials Pacific, LLC as their torpedo, the NLRB has inflicted a blow to employers facing unionization efforts. The employees at issue were approximately 366 ready-mix cement truck drivers and driver trainers.  The drivers and trainers showed support...
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‘Captive Audience’ Memo from NLRB General Counsel Survives First Legal Battle

Mathew Moldawer
Mathew Moldawer
08/17/2023
Since the decision in Babcock v. Wilcox Co., 77 NLRB 577 (1948), the NLRB has permitted captive audience meetings. Under the captive audience doctrine and Section 8(c) of the NLRA, employers may hold mandatory employee meetings and speak to their employees about unionization so long as the employer does not threaten, punish, or promise benefits to the employees. Captive audience meetings are one of the few remaining arrows in management’s quiver...
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NLRB Revises Workplace Rules Standards

As has been anticipated for some time, the National Labor Relations Board (NLRB), in Stericycle, Inc. (Aug. 2, 2023), adopted a new standard for determining whether workplace rules are lawful under the National Labor Relations Act.  The new standard is similar to the analysis used prior to the Board’s 2017 decision in Boeing Co. Under the Stericycle framework, the lawfulness of workplace rules under the NLRA turns on whether workers would view...
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Seventh Circuit Blasts ADT For NLRA Violations

Mathew Moldawer
Mathew Moldawer
06/30/2023
From the opening, it was apparent that the Seventh Circuit Court of Appeals was not pleased with ADT.  ADT, well known for their blue signs to discourage intruders, was found to have violated the National Labor Relations Act (NLRA) by the National Labor Relations Board (NLRB).  As stated by the Court, the case “presents a disappointing and transparent attempt by an employer to avoid its obligations under the National Labor Relations Act.”...
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NLRB Clarifies (Again) NLRA Independent Contractor Test

Garrett Wozniak
Garrett Wozniak
06/16/2023
The National Labor Relations Board (NLRB) has revisited the standard under the National Labor Relations Act for determining whether a worker is an independent contractor.  The Atlanta Opera, Case 10-RC-276292 (NLRB June 13, 2023). First, a little background.  In its 2019 SuperShuttle DFW decision, the Board made it easier for companies to establish that their workers are independent contractors (rather than employees) by clarifying and emphasizing...
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National Labor Relations Board Changes its Mind (Again) – Reverts to Previous Rule on Disciplining Misconduct Occurring in Connection with Protected Activity

Jordan Dunham
Jordan Dunham
05/04/2023
It is no secret that the National Labor Relations Board’s (“NLRB” or the “Board”) General Counsel Abruzzo is pushing a pro-union/employee agenda.  She stated as much in 2021 when she released her 10-page memo to NLRB staff outlining that under her leadership, the NLRB would focus on reviewing the “numerous adjustments to the law, including a wide array of doctrinal shifts” that occurred under the NLRB’s prior leadership.  Don’t...
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