NLRB’s New Cemex Standard Threatens Interim Court Order Process

The National Labor Relations Board’s new standard for handling union representation disputes has the potential to undercut the agency’s ability to obtain interim orders in federal district court.

In Cemex Contruction Materials Pacific LLC, the board simplified the process for getting stiffer remedies from the NLRB against employers that are found to have broken the law during a union organizing campaign.

Cemex allows the NLRB to issue orders requiring an employer to bargain with a union if it commits a single National Labor Relations Act violation in the run-up to an election, or if a company doesn’t accept a union or seek an election if employees demand voluntary recognition.

But that new doctrine comes with a catch: it may become more difficult for the agency to secure interim bargaining orders as part of federal court injunctions under Section 10(j) of the NLRA, attorneys say.

The 10(j) injunctions are aimed at protecting or restoring the status quo to what it was before the alleged violation while litigation in the underlying administrative case proceeds. Federal judges consider two things: the agency’s likelihood of proving the violation, and the need for immediate action because the NLRB’s ultimate remedy won’t be enough to address that violation.

Cemex lowers the chance of “remedial failure” by increasing the board’s power to impose remedies that are adequate to counteract any legal violations, said Mark Gaston Pearce, a law professor at Georgetown University and a former Democratic NLRB chairman.

“Even if the bar is lowered in determining whether a bargaining order is appropriate, I think a district judge is more likely to say ‘you can issue a bargaining order on your own and if the employer doesn’t comply, you can move to enforcement. Why are you bothering me with it?’” Pearce said.

Federal judges also may hesitate to rule on 10(j)s under Cemex because the decision has been appealed to the US Court of Appeals for the Ninth Circuit, said Ryan Funk, a management-side attorney at Faegre Drinker Biddle & Reath LLP.

“They might be a little wary of making a ruling on this when it’s still a matter of first impression for that circuit, so I do wonder if the district courts will weigh in while it’s all shaking out,” he said. “And some judges may see Cemex as an activist change in the law and won’t be happy about the agency taking up docket time with it.”

Benefits Remain

Despite the potential pitfalls, the NLRB and unions continue to see the 10(j) process as beneficial even in Cemex cases.

NLRB General Counsel Jennifer Abruzzo has called the 10(j) injunction “one of the most important tools available to effectively enforce the Act,” and urged agency officials in a 2021 memo to pursue them “aggressively.”

Rebecca Leaf, an employer-side attorney at Miles & Stockbridge PC, said the general counsel appears primed to continue expanding 10(j) litigation under Cemex.

“We have a general counsel who is known to be pretty forceful in this realm,” said Leaf, a former NLRB attorney. “I don’t think this matter is going away any time soon.”

After an NLRB administrative law judge ruled that Massachusetts cannabis company I.N.S.A. Inc. illegally fired two union organizers and committed a slew of other violations during a unionization campaign, the agency sought an injunction in the US District Court for the District of Massachusetts ordering the company to recognize and bargain with the union.

NLRB Regional Director Laura Sacks asked the court to double down on the ALJ’s Cemex bargaining order while the matter is pending before the board, arguing that interim bargaining orders “serve the dual purpose of protecting the collective-bargaining process and preserving the efficacy of a final Board bargaining order.”

“A Board bargaining order under Cemex issued years from now will not restore employees’ willingness to engage in Section 7 activity after enduring coercion and the discipline and discharges of union supporters,” Sacks said in court papers, referring to Section 7 of the NLRA. “If anything, the loss of union support is likely to exacerbate over time.”

Immediate bargaining orders from a federal judge—instead of waiting for a board decision—are still vital in keeping up a union’s momentum, said Alexander Robertson, an attorney with Pyle Rome Ehrenberg PC who’s representing workers in the I.N.S.A. case.

“If it takes even six months to get a decision, it’s devastating for the campaign and that just compounds the longer you wait,” Robertson said. “The delays make everything feel futile to the workers and it makes it look like the employer can do whatever it wants.”

Reluctant Orders

Yet the agency doesn’t seek 10(j) injunctions often, and is even more reluctant to use the process to seek bargaining orders, instead targeting directives to rehire and provide back pay to unlawfully fired workers.

“If people have lost their jobs in a dramatic way, there’s complete disaffection with the union drive because people are so scared,” Pearce said. “Even if the administrative proceedings find that an unfair labor practice has taken place, the union drive might be dead by the time that matter has reached resolution.”

“The 10(j) process is designed to be a quick solution to prevent that from happening,” he said.

Some judges are skeptical of temporary bargaining orders in the first place, Pearce said.

“The employer has some sort of obligation to bargain on an interim basis, but if the NLRB ultimately determines there isn’t basis for the remedy, all that work gets undone? That’s an odd set of circumstances,” he said.

Some district judges were wary of granting interim bargaining orders under the prior standard upheld in the 1969 US Supreme Court decision NLRB v. Gissel Packing Co., said David Pryzbylski, a partner at Barnes & Thornburg LLP. But that was a much higher standard of proof than Cemex.

“Now that standard has been so relaxed, I think it’s going to be easier for the general counsel to say ‘there’s been this violation, the remedy is going to be a bargaining order, we need to get there now so things don’t fall apart by the time the board can get to it,’” he said.