The Cemex Construction Materials Pacific, LLC v. NLRB decision is in – it’s impactful, but notably unfinished.
The Ninth Circuit enforced the Board’s order, including a bargaining order under NLRB v. Gissel Packing Co. That part isn’t surprising. What is notable is what the court didn’t do: it declined to address the Board’s new Cemex framework altogether.
The Ninth Circuit had little trouble affirming the Board’s traditional Gissel bargaining order. Applying familiar standards, the Court found the case fit squarely within Gissel territory. During the organizing campaign, Cemex committed “hallmark” unfair labor practices (“ULP”) – threats of closure, discharge of a union supporter, coercive statements – and there was a record showing majority support via authorization cards and that traditional remedies would not cure the coercive atmosphere to allow for a fair rerun election. As the Court reiterated, bargaining orders remain appropriate where the “possibility of erasing the effects” of ULPs and ensuring a fair rerun election is “slight.”
Here’s the headline – the Ninth Circuit explicitly declined to rule on the Board’s new Cemex standard.
The Board had argued for its new framework – i.e. where an employer’s refusal to recognize a card-based majority, followed by any ULP that taints an election, can trigger a bargaining order. However, the court sidestepped the issue entirely and affirmed the...
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