Labor News & Commentary October 21, 2024 Cemex is headed to the Ninth Circuit for review & more

[Omaha Steve]

https://onlabor.org/october-20-2024-2/

By Holden Hopkins

Holden Hopkins is a student at Harvard Law School.

In today’s News & Commentary, Cemex is headed to the Ninth Circuit for review and General Council Abruzzo pushes back on calls for student athlete employee status legislation.

Today, the Ninth Circuit is set to hear oral arguments in Cemex Construction Materials Pacific LLC’s challenge to the NLRB’s 2023 ruling in their case which established the doctrine that bears the company’s name. Under the Cemex framework, if a union demonstrates majority support and the employer demands an election but then commits ULPs, the NLRB is authorized to grant a bargaining order even without waiting for the results of or re-running that election. Luke reported on one such Cemex order back in June, and the NLRB is currently pursuing bargaining orders under the doctrine in cases against Starbucks, Trader Joe’s, and more.

Brian Petruska, general counsel for the LIUNA Mid-Atlantic Regional Organizing Fund, told Bloomberg Law that evidence of Cemex’s positive impacts can be seen in the rise in union election petitions filed with the Board—up 27% from last year. “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 stated.

Cemex argues in their brief that the new doctrine fundamentally changed the processes and circumstances which trigger bargaining obligations, and thus runs afoul of the major questions doctrine. The Board countered in that this action is not the sort that would trigger major questions review, as it is consistent with both the Board’s authority and past precedent upheld by both the Ninth Circuit and Supreme Court.

FULL story at link above.