What happened?

On November 2, 2023, The office of National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo released a guidance memo on Thursday explaining how the Board will apply its new Cemex standard for remedial bargaining orders. 

What are the details?

On August 24, the NLRB adopted a final rule amending its procedures governing representation elections.

On August 25, the NLRB issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election.

The Cemex standard applies retroactively and is already in effect. This memo serves as a guide and warning to all employers not only referring to unfair labor practices (ULP) but on the consequences of such.

Additional opinion provided by Buchanan Law Firm and Benesch Law firm:

• “Ultimately, the memo provides an incentive for unions to file more unfair labor practice charges alleging labor law violations that previously would not have resulted in remedial board orders.” Buchanan Law Firm

• “The NLRB has now released a memo which suggests employers should expect increased litigation as unions seek bargaining orders under the new, lower standard issued in the Cemex decision.” Benesch Law Firm

Best practices

• Consider updating your policies and/or practices regarding the Cemex standard and NLRB memo.
• Consider a communication and training plan for your organization on relevant pieces of this standard.
• Consider consulting with a labor attorney on how this pertains to your organization specifically.

Here are some additional resources:

• Law Firm Articles: Article 1, Article 2, Article 3, Article 4
• NLRB memo
• CEMEX Construction Materials Pacific LLC Board Decision
• News Article 1
• Vensure communication September 11, 2023.

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