On June 17, 2024, the National Labor Relations Board (“NLRB” or “Board”) issued its first mandatory bargaining order to an employer after its momentous decision in Cemex Construction Materials Pacific, LLC last year. The NLRB ordered Red Rock Casino Resort Spa to bargain with Unite Here, the union which began organizing employees at the casino in 2018 and 2019, after finding that Red Rock committed unfair labor practices in the run-up to the union’s 2019 election.

Cemex Decision

As we previously discussed, in August 2023, the NLRB decided Cemex, rewriting the rules by which a union can establish exclusive representation of bargaining unit employees, shortening the timeframe for representation elections, and putting greater pressure on employers when faced with union organizing.

As the Board held in Cemex:

“an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).”

Importantly, after a petition is filed, if an employer subsequently “commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order.”

Prior to Cemex, under the standard established in NLRB v. Gissel Packing Co., the Board could implement a bargaining order without an election where a union has achieved majority support and an employer engages in unfair labor practices which “ have the tendency to undermine majority strength and impede the election processes.” As NLRB General Counsel Abruzzo clarified in her memorandum following the Cemex decision, a “Cemex order” differs from a “Gissel order,” which is issued when the election atmosphere has been tainted by an employer to a point where a fair rerun election is unlikely.

Now, under Cemex, the Board will focus on the employer’s conduct prior to the filing of an election petition and in the period immediately preceding the election, and the Board is empowered to aggressively issue bargaining orders based on the employer’s conduct prior to the election.

Red Rock Decision

In Red Rock, the Board found that the casino’s extensive anti-union campaign involved both threats and the promise of new benefits—both of which violated the National Labor Relations Act (“NLRA” or “Act”). Not only was a Gissel bargaining order warranted, but the Board also applied a Cemex bargaining order, the first under the new standard.

The Board concluded that (1) Red Rock refused the union’s request to bargain; (2) at a time when the union had been designated representative by a majority of employees; (3) in an appropriate unit; and then (4) committed unfair labor practices requiring the election to be set aside.

Takeaways

Cemex is currently under challenge and awaiting oral argument in the U.S. Court of Appeals for the Ninth Circuit. However, although the Circuit Court—and potentially even the U.S. Supreme Court—may alter or vacate the Cemex decision, Red Rock makes clear that the force of the new Cemex standard is fully in play. Employer conduct is under intense scrutiny, both before and after an election petition may be filed, as unfair labor practices are more likely to result in a Board-imposed bargaining order should an employer violate the Act during this critical period.

We will continue to provide updates on this important topic as developments occur.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Alexander J. Blutman Alexander J. Blutman

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment Law and Co-Producer of the Harvard Law School Parody. While at Harvard, Alex spent time as a legal intern with the UNLV Athletics Department, Special Olympics International, and the National Football League.

Prior to law school, Alex worked as a paralegal at an Am Law 100 law firm. He graduated from Duke University, where he served as a student-manager for the men’s basketball team.