NLRB Means Business, Issues First Cemex Bargaining Order

Author: Robert S. Teachout, XpertHR Legal Editor

September 28, 2023

In the nation's first application of the NLRB's Cemex decision, a National Labor Relations Board (NLRB) administrative law judge (ALJ) ordered a Massachusetts employer to recognize and bargain with the United Food and Commercial Workers International Union after the union lost a representation election.

Finding the employer committed numerous unfair labor practices during the union election, the ALJ ruled that the election had to be set aside. Then the ALJ applied the Board's new framework established in its Cemex ruling to determine whether to order a new election or to issue a remedial bargaining order.

In Cemex, the NLRB instructed that a remedial bargaining order is appropriate when:

  1. The employer refuses a union's request to bargain,
  2. At a time when the union had in fact been designated as representative by a majority of employees,
  3. In an appropriate unit, and
  4. The employer then commits unfair labor practices requiring the election to be set aside.

The ALJ held that the employer's actions during the union election met all the criteria for issuing a remedial order for the employer to bargain with the union. In particular, the ALJ noted that the employer had engaged in multiple instances of unlawful conduct to influence employees to reject the union, including:

  • Soliciting employee grievances and promising employees increased benefits and improved terms and conditions of employment if they abstained from supporting the union;
  • Making unprecedented and repeated visits by the owners and high-level managers to the store, creating the impression that employees were under surveillance;
  • Threatening employees with various adverse consequences if the union were to win the election;
  • Telling employees that they would not receive performance reviews and related wage increases until after the election;
  • Restricting employees from talking about unions while allowing employees to discuss other non-work-related topics;
  • Enforcing work rules and policies discriminatorily; and
  • Disciplining and discharging employees because they engaged in union activities.

The ALJ ruled that the employer's conduct "irreparably harms the organizing effort and undermines the integrity of the election process."

The Cemex standard shifts the balance in organizing strongly in favor of unions, allowing a path to unionization even if the union loses an election. Employers should be vigilant in ensuring that managers understand what activities and actions are not allowed during a union organizing campaign to avoid having an election thrown out and being ordered to bargain with the union.