## Facts

- Cemex Construction Materials Pacific, LLC employed about 366 ready-mix concrete truck drivers and driver trainers in the relevant unit.
- The International Brotherhood of Teamsters sought to represent the unit and pursued a Board-conducted election.
- On March 7, 2019, employees voted against union representation, 179–166.
- During the critical period, Cemex committed extensive unlawful conduct, including:
  - threats of plant closure, job loss, and other reprisals if employees selected the union;
  - surveillance and interrogation concerning union activity, including creating an impression of surveillance;
  - directives restricting employees from speaking with union representatives during “company time”/“working hours” and restrictions on prounion paraphernalia;
  - hiring security guards shortly before the election to intimidate union supporters.
- Cemex disciplined, suspended, and discharged lead union supporter Diana Ornelas; the Board found the suspension and discharge were because of union activity.
- An ALJ found more than two dozen violations of NLRA § 8(a)(1) and additional violations of § 8(a)(3), set aside the election, and recommended a rerun election rather than a bargaining order.
- On exceptions, the NLRB (majority) modified parts of the ALJ’s analysis, ordered Cemex to bargain, and announced a new bargaining framework applicable beyond the case.

## Issues

1. Whether Cemex violated NLRA § 8(a)(1) and § 8(a)(3) through threats, surveillance/impression of surveillance, coercive rules, intimidation, and discriminatory discipline in connection with the organizing campaign and election.
2. Whether the proper remedy was a rerun election or a bargaining order requiring recognition and bargaining.
3. What standard governs an employer’s obligation when a union demands recognition based on demonstrated majority support.

## Decision

- The Board found Cemex committed numerous unfair labor practices, including “more than two dozen” § 8(a)(1) violations and discriminatory suspension and discharge in violation of § 8(a)(3) and (1).
- The Board set aside the election and declined to order a rerun election.
- The Board ordered Cemex to recognize and bargain with the union and imposed customary remedial relief (including rescission of unlawful rules and make-whole relief for Ornelas).
- The Board adopted and applied a new framework: when a union presents evidence of majority support and requests recognition, the employer must either recognize and bargain or promptly file an RM petition for an election; if the employer seeks an election but commits election-tainting unfair labor practices, the petition is dismissed and a bargaining order issues without a rerun election.
- A dissenting member would have rejected the new framework and its retroactive application and would have required a more traditional showing for a bargaining order.

## Legal Principles

- Employer conduct that threatens reprisals, creates surveillance or an impression of surveillance, unlawfully restricts protected communications, or intimidates employees violates NLRA § 8(a)(1).
- Discipline, suspension, or discharge motivated by employees’ union activity violates NLRA § 8(a)(3) and derivatively § 8(a)(1).
- A bargaining order may be warranted where employer misconduct undermines majority support and makes a fair election (including a rerun) unlikely under the Board’s bargaining-order doctrine associated with serious and pervasive unfair labor practices.
- New NLRB rule: upon a union’s demand for recognition supported by evidence of majority status in an appropriate unit, the employer must either (a) recognize and bargain, or (b) promptly file an RM petition seeking an election; if the employer chooses (b) but commits unfair labor practices requiring the election to be set aside, the remedy is dismissal of the petition and a bargaining order rather than a rerun election.
- The Board may apply newly announced standards retroactively in adjudication absent a sufficient countervailing reliance interest.

## Conclusion

The NLRB held that Cemex’s extensive coercive campaign conduct and discriminatory discipline violated the NLRA, set aside the election, and ordered Cemex to bargain; it also established a general rule requiring employers faced with a union’s majority-based recognition demand to either recognize the union or promptly seek an RM election, with a bargaining order (not a rerun election) as the consequence for election-tainting unfair labor practices.


Cemex Constr. Materials Pac., LLC, 372 N.L.R.B. No. 130 (2023)