CEMEX Construction Materials Pacific, LLC v. National Labor Relations Board, et al.

Under the National Labor Relations Act (NLRA), this Court has long held that secret ballot elections are the “preferred” method for ascertaining whether employees want union representation. NLRB v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). When an election is set aside by the National Labor Relations Board (NLRB) due to unfair labor practices (ULP), a bargaining order is supposed to be an extreme remedy, authorized only where the “possibility of erasing the effects of past practices and of ensuring a fair election … by the use of traditional remedies, … is slight.” Id. This case presents the question whether courts of appeals and the NLRB are required to account for changed circumstances occurring after a union election – specifically the passage of time and significant turnover – prior to enforcing a Gissel bargaining order instead of a rerun vote. The Ninth Circuit – alone among all twelve circuits that have considered the issue – has held that changed circumstances are “irrelevant” to enforcement of a Gissel bargaining order. Every other circuit has interpreted Gissel to require consideration of the passage of time and employee/management turnover when a bargaining order is sought. Absent review, the Ninth Circuit’s order in the present case will disenfranchise a majority of Petitioner’s eligible employees, who have had no opportunity to cast a secret ballot in any union election. Certiorari should be granted to resolve the extraordinary split in the circuits on this important issue.