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As discussed previously, in August, the National Labor Relations Board (NLRB) overturned years of precedent upon deciding Cemex Construction Materials Pacific, LLC, 327 NLRB No. 130 (2023). The Board held that when a union demands recognition, the employer has two choices: Recognize the union or file a petition for election. If the employer commits an unfair labor practice (ULP) during the election period, it can be ordered to bargain with the union and forfeit the election. The Board and General Counsel also determined the new rules can apply retroactively to any active case.  

Instances of this retroactivity are now beginning to emerge.  

Recently, an Administrative Law Judge (ALJ) mandated a retroactive bargaining order in a case heard prior to the Cemex ruling. In I.N.S.A., Inc., N.L.R.B. A.L.J., No. 01-CA-290558 (September 21, 2023), a majority of employees demanded union recognition through a letter to the employer. The union later lost the election. The union, however, alleged that the employer interfered with the employees’ right to freely select a bargaining agent after receiving the letter.  

The ALJ agreed, finding that the company committed serious ULPs after the petition for election was filed, and set aside the election. The employer was ordered to recognize and bargain with the union retroactive to January 14, 2022, when the employer declined to recognize the union. As a result, the employer was forced to bargain over any changes in job terms it made since January 2022. Any changes made by the employer since January 2022 were required to be set aside and negotiated with the union. For example, a change in wages or benefits that occurred during that time frame must be negotiated with the union. 

In addition, Point Management Settlement Agreement Point Mgmt., LLC, N.L.R.B. Reg’l Dir., No. 14-CA-324836 (October 26, 2023) stems from an NLRB approved settlement agreement flowing from the Board’s Cemex doctrine regarding employer ULPs. In this case, Point Management was charged with dozens of allegations of misconduct – occurring six months before the decision in Cemex – alleging that the employer intimidated workers during the unionization campaign, including terminating 10 employees. Upon resolution, 15 ULP charges were resolved in the employees’ favor, a $145,000 fine was imposed on the employer, and the employer was required to recognize and bargain with the union, even though the union lost the election. 

To avoid being forced to recognize a union, employers must act cautiously before and during the election period. Cemex broadens the types of employer misconduct that can cause an employer election victory to be set aside and result in a bargaining order. Although such orders were rarely issued in the past, we expect more bargaining orders utilizing the new Cemex standards. While Cemex continues to have significant impacts in the labor world, the decision itself was recently appealed for review by the U.S. Court of Appeals for the Ninth Circuit.  

Other Cemex-related developments to be aware of include the following: