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NLRB General Counsel Issues Aggressive Memo Regarding New Cemex Standard

13 Dec

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Update Applicable to:  Effective date
All employers  August 24, 2023 – final rule regarding elections.   August 25, 2023 – Cemex Standard.

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:

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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