On August 25, 2023, the National Labor Relations Board (“the NLRB” or “Board”) issued a decision in Cemex Construction Materials Pacific LLC, 372 NLRB No. 130 (2023). The Cemex decision establishes a new framework that governs an employer’s responsibilities when presented with a union demand for recognition. The decision has significant impact on employers, as it puts the responsibility on the employers to file for the election in the first instance and articulates the conduct by employers that will result in the issuance of mandatory bargaining orders by the NLRB. New Jersey employers, like employers elsewhere, must be aware of the new standard and have procedures and policies in place to be in the position of acting immediately once a union requests recognition in order to avoid pitfalls.
The facts of the Cemex decision
Cemex involved a campaign of about 366 ready-mix cement truck drivers and driver trainers to organize a bargaining unit led by the International Brotherhood of Teamsters. Despite the campaign, the employees voted against representation by a close margin of 179 to 166. The union alleged that the employer committed unlawful and coercive conduct before, during, and after the election. The alleged unlawful actions by the employer included: threats of plant closures and job loss if the employees chose the union; surveillance of the employees; restriction of the employees’ communication with union organizers; and the hiring of security guards for purposes of intimidating the employees immediately before the election. The union requested, among other relief, that the results of the election be set aside and that the employer be affirmatively ordered to bargain with the union under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
The Administrative Law Judge recommended setting aside the election. The NLRB took an unprecedented step further: the Board determined that the employer’s conduct warranted a remedial bargaining order.
The New Framework and Impact
Under the new framework set forth in Cemex, after a union requests recognition on the grounds of majority status, the employer has the following two options: (1) recognize the union; or (2) file its own a “RM petition” requesting an election with the NLRB within two weeks. Previously, under the former framework, the employer could either decline or agree to recognize the union. If not recognized, the responsibility was on the union to file a petition with the NLRB requesting an election.
In addition, the court in Cemex also decided that if an employer who seeks an election commits any unfair labor practice before the election, it will be ordered to recognize and bargain with the union rather than to simply re-run the election.
Retroactive Application
Cemex applies retroactively to all pending cases at any stage of the case unless the application would result in a “manifest injustice.” NLRB General Counsel Jennifer Abruzzo further made that clear in her November 2, 2023 Memorandum GC-01. The implications of Cemex are therefore far-reaching.
Employers must be proactive and be prepared under the new framework
It is imperative that employers, labor unions and employees alike become familiar with the new framework in order to protect their rights under the NLRA. Management, in particular, must be familiar with the Cemex decision because it stands the most to lose; it now has the obligation to request an election within two weeks in the event it decides to decline union recognition. Management must be trained in understanding what will trigger the obligation. Management must also be reminded of what is appropriate (and inappropriate) conduct before, during, and after an election. The consequences of not understanding the altered landscape are drastic.
For further details please contact the lawyers at Tobia & Lovelace Esq., LLC at 973-389-6940.