The National Labor Relations Board’s game-changing decision to ease union organizing will get a critical courtroom test next week at a federal appeals court in San Francisco.
The US Court of Appeals for the Ninth Circuit is set to hear oral argument Oct. 21 in Cemex Construction Materials Pacific LLC’s challenge to the NLRB’s ruling that created a framework designed to clean up representation elections and provide a path to unionization without a formal vote.
The case is crucial for the viability of the Cemex doctrine. Ninth Circuit disapproval could make NLRB bargaining orders issued under the doctrine impossible to enforce within the circuit’s jurisdiction, which covers California, Washington, Arizona, Oregon, Nevada, Montana, Idaho, Hawaii, and Alaska.
“A decision rejecting Cemex would be a blow to union organizing,” said Anne Marie Lofaso, a labor law professor at West Virginia University and former NLRB lawyer.
The Cemex framework replaced a system that would often remedy illegal interference with union elections by ordering rerun elections, which the NLRB said encouraged employers to commit unfair labor practices because they generally face better odds in a second vote.
A company would need to commit labor law violations that were so egregious that it destroyed the possibility of a fair election for the board to issue an order to recognize and bargain with a union, as per the US Supreme Court’s 1969 decision in NLRB v. Gissel Packing Co. The board said it has sometimes been reluctant to issue Gissel orders due to concerns that courts wouldn’t enforce them.
Under Cemex, when a union says it has support from a majority of workers and requests recognition, an employer can either recognize and bargain with the union or file a petition for an election. If an employer violates labor law ahead of the vote after a union made a demand, the NLRB will order it to recognize and bargain with the union.
“Clearly it’s the biggest case that the board has decided in the last 20 years, at least,” said Matthew Bodie, a University of Minnesota labor law professor and former NLRB attorney. “It’s seen as a real sea change.”
Cemex Impact
Administrative law judges and the NLRB have handed down a handful of Cemex orders since the board minted the new framework in August 2023. Both of the NLRB’s orders are up for appellate court review.
Agency prosecutors are seeking bargaining orders in several cases, including those involving
One measurable impact of Cemex has been a surge in employer petitions for elections. Other potential consequences, like the number of times employers have voluntarily recognized unions, are harder to gauge.
A sign that the Cemex doctrine is working as intended—to prevent unfair labor practices before union elections—can be seen in an increase in petitions filed, said Brian Petruska, general counsel of the LIUNA Mid-Atlantic Regional Organizing Fund.
“That would be a sign of a better functioning system, a system with more legitimacy that’s better able to provide a means of union representation,” Petruska said. “More people would be willing to use the system because it’s viable.”
The NLRB announced this week that union election petitions in fiscal year 2024 increased by 27% over the previous fiscal year. Unfair labor practice filings saw a more modest 7% jump during that period.
Elections v. Card Check
Employers say the Cemex doctrine diminishes the prominence of secret ballot elections by creating something closer to a card-check system that turns on a majority of workers signing authorization cards.
The doctrine makes that shift by lowering bar for triggering a bargaining order after a union demands recognition, said Alexander Preller, a management-side lawyer with Faegre Drinker Biddle & Reath LLP.
“The level of perfect compliance with labor law really flips the script in favor of authorization cards over elections,” Preller said.
But employer advocates’ card check comparisons are an effort to create a PR problem for Cemex, when holding fewer secret ballot elections might actually be a positive development, said Kimberly Weber, a union-side attorney with McCracken Stemerman & Holsberry LLP.
Forcing unnecessary elections gives employers the opportunity to run unlawful anti-union campaigns, she said.
Ninth Circuit Review
The NLRB announced its new doctrine in its decision finding that Cemex committed roughly two dozen unfair labor practices in the run up to an election that the International Brotherhood of Teamsters narrowly lost.
Cemex argued in its Ninth Circuit brief that the NLRB fundamentally changed the circumstances that trigger an employer’s bargaining obligation with a union contrary to the major questions doctrine, which requires Congress to clearly give an agency the authority to do something so significant.
The US Chamber of Commerce, National Association of Manufacturers, and more than a dozen other industry groups backed Cemex in an amicus brief.
In its brief, the NLRB said modifying its standard for issuing bargaining orders isn’t the type of colossal change that implicates the major questions doctrine. Regardless, the Cemex framework fits within the board’s authority and is consistent with precedent affirmed by the Ninth Circuit and the Supreme Court, the agency said.
The Teamsters argued in its brief that the bargaining order was justified, but that the board should have found additional unfair labor practices. The case is in the Ninth Circuit because the Teamsters filed its petition for review there—Cemex filed in the D.C. Circuit—and the union won the multi-circuit lottery.
The Ninth Circuit panel that will consider the Cemex decision is composed of Judges Richard Clifton, a George W. Bush appointee, and Judges Jennifer Sung and Gabriel Sanchez, both Biden appointees.
The case is Cemex Constr. Materials Pac., LLC v. NLRB, 9th Cir., No. 23-2302, oral argument scheduled 10/21/24.
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