NLRB General Counsel Publishes New Memorandum in Response to Cemex Decision

By Mary Bell posted 12-26-2023 07:00 AM


In August 2023, the National Labor Relations Board (NLRB) issued a landmark decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), aimed at addressing delays in union representation decisions and expediting the resolution process. Notably, this decision created significant changes in how unions become bargaining representatives and is retroactive to all pending cases. In November 2023, following up on the Board’s decision, NLRB General Counsel Jennifer Abruzzo provided guidance to employers further addressing its implications in GC Memorandum 24-01.  

The memo begins by clarifying that the Cemex decision is based on the Board’s finding that the previous standard was inadequate to safeguard employees’ rights to elect a recognized bargaining agent (union) and compel employers to engage in collective bargaining with the union. The Board reversed the standard in Linden Lumber Division, Summer & Co., 190 NLRB 718 (1971), which permitted employers to refuse to accept a union’s evidence of majority support without the need for further action by the employer. The Board opined that employers were committing unfair labor practices (ULPs) during crucial times around union drives because litigating ULP claims could delay and/or disrupt the election process, which created an incentive for employers’ misconduct. The Cemex decision seeks to eliminate this incentive and ensure a fairer process 

The Cemex rules apply in the following two specific situations:  

  • Where an employer chooses not to recognize a union claiming majority representation status, the employer must file a petition for election within two weeks. Failure to meet the deadline could result in a bargaining order against the employer 

  • Where an employer is charged with a ULP during the crucial time period in the representation process, the Board can order the employer to recognize and bargain with the union, foregoing the need for an election. 

The general counsel memo clarifies the method of delivery of a union demand for recognition. There are few limitations. Even a verbal demand to the employer suffices, and the union can direct its demand to any agent of the employer, even a low-level supervisor.  

The memo also addresses the types of employer misconduct that can trigger a bargaining order. The general counsel declared one “less-serious” violation of labor laws can result in a bargaining order. Employer disruption or interference with the election process is the focus of whether a Cemex bargaining order is the proper remedy. Other types of misconduct will be dealt with on a case-by-case basis, with emphasis on how the conduct negatively affected the election. The time between the union’s first bargaining demand and the election is deemed the “critical period” for applying the Cemex standard. 

Under the new standard, it is likely that employers will file election petitions, which are typically filed by unions. In this new role, employers must file the petition using the union’s description of the bargaining unit while simultaneously arguing that it is not the appropriate unit. The general counsel affirmed the permissibility of this filing. Accordingly, when filing a petition, the employer should describe its preferred unit and explain why it disagrees with the union’s proposed unit. The general counsel notes that the union’s proposed unit is deemed the “appropriate” unit unless the employer can establish the contrary. 

There are many twists and turns in the landscape of Board elections and the duty to bargain. Cemex represents a turn toward favoring union representation and bargaining rights when an employer receives a demand for recognition from a labor organization. Employers should be mindful of these changes and adapt their strategies accordingly to navigate the evolving landscape of labor relations. If you have any questions or need assistance, please reach out to Employers Council’s Labor Relations team.