District Court Orders First Ever Preliminary Injunction in Cemex Case
District Court Orders First Ever Preliminary Injunction in Cemex Case
An interesting development.
In August of last year, the NLRB issued its Cemex decision, which held that “if the employer commits an unfair labor practice that requires setting aside [a union] 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.”
On Monday, a federal district court issued a Section 10(j) injunction requiring an employer to recognize and bargain with a union based on Cemex. This requirement is being imposed before the NLRB has actually had a chance to rule on the case.
Below is a summary of the order.
Background
Union Organizing Efforts:
December 2021: United Food and Commercial Workers International Union, Local 1445 (the Union) began organizing employees at Respondent’s Salem store.
January 2022: The Union collected authorization cards from a majority of the Salem store's employees and presented a Demand for Recognition letter to Respondent, which was ignored.
May 2022: The Union lost the election.
Unfair Labor Practices Allegations:
February 2022 - April 2023: The Union filed charges alleging Respondent engaged in unfair labor practices that frustrated the election process.
Administrative Law Judge (ALJ) Decision:
September 2023: The ALJ found Respondent committed serious unfair labor practices and required several remedial actions including a cease-and-desist order and a bargaining order.
Application for 10(j) Injunction:
October 2023: Laura Sacks filed a Petition for temporary injunctive relief under Section 10(j) of the Act.
Court’s Findings and Injunction Order
Reasonable Cause:
Sections Violated: The court found reasonable cause to believe Respondent violated Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act.
Unfair Labor Practices: These included disciplining and terminating employees for union activity, prohibiting union discussions during working hours, and failing to recognize and bargain with the Union after the demand letter.
Just and Proper Standard:
Likelihood of Success: Petitioner is likely to succeed on the merits based on the ALJ's thorough ruling.
Irreparable Harm: Without interim relief, the Union's support could further erode, making effective representation impossible.
Balance of Hardships: The potential harm to Respondent from an injunction is minimal compared to the harm to the Union and employees without it.
Public Interest: The public interest supports ensuring the purposes of the Act are furthered.
Relief Granted:
Cease and Desist: Respondent must cease discriminatory practices against union activities.
Recognition and Bargaining: Respondent must recognize and bargain with the Union as the exclusive representative of its Salem employees.
Reinstatement Offers: Written offers of reinstatement to Adam Lynch and James Bagnall.
Rescind Discipline: Interim rescission of written warnings to AJ Parker, Rowan Cummings, and James Bagnall.
Posting and Dissemination: Physical and electronic postings of the Court’s order in English and other necessary languages.
Mandatory Meetings: Meetings where the order is read to employees, ensuring broad attendance and understanding.
Compliance Affidavit: Submission of a sworn affidavit detailing compliance with the order.