The underlying dispute centers on a union-organizing campaign among roughly 366 ready-mix drivers and driver trainers employed by Cemex at approximately 24 facilities in Southern California and Las Vegas. The Teamsters gathered authorization cards from at least 207 drivers — about 57 percent of the unit — during October and November 2018, then filed for a Board-supervised election. In that election, held March 7, 2019, employees voted against representation 179 to 166, a margin of 13 votes. The NLRB General Counsel and the Union alleged that Cemex had poisoned the election through an extensive campaign of unlawful conduct, and the Board ultimately agreed, setting aside the results and issuing a bargaining order.
The Board found that Cemex committed numerous unfair labor practices spanning more than a year. A foreman made unlawful statements in August 2018 and January 2019. Vice President Forgey told drivers at a January 29, 2019 meeting that because of the upcoming election Cemex was in a status quo position and could not give raises, that bargaining could take "years," and that Cemex "did not have to agree to anything." Forgey also threatened that Cemex could convert plants into "satellites" — which the Board found drivers reasonably understood as a threat of plant closure — and made misstatements about striking employees' reinstatement rights that were then disseminated company-wide through a "road show" of meetings. Managers surveilled employees at the Inglewood plant in January 2019, promulgated an unlawful "company time" rule barring drivers from speaking with union organizers, and deployed security guards throughout facilities for two weeks before the election and at every polling location on election day. Driver Ornelas, a prominent union supporter, was suspended in July 2019 and terminated in September 2019 based in part on prior unlawful discipline. The Board found that most of the misconduct stemmed not from the mistakes of a few managers but from a carefully crafted corporate strategy, and that at least three high-level Cemex officials had intentionally fabricated testimony at the hearing to conceal the unlawful conduct.
The majority — Judges Sung and Sanchez — held that substantial evidence supported each of the Board's unfair labor practice findings and that the Board did not clearly abuse its discretion in issuing the Gissel bargaining order. The panel rejected Cemex's argument that the violations were not serious and pervasive enough, noting that the Board had identified at least three categories of so-called hallmark violations — threats of plant closure, threats of job loss, and discipline and discharge of a prominent union supporter — that courts have long recognized as warranting a bargaining order. The majority also rejected Cemex's constitutional challenge to ALJ removal protections, holding that Cemex had failed to show compensable harm. The panel declined to reach the parties' dispute over the Board's retroactive application of a new, more expansive bargaining-order standard the Board had announced in the same decision, finding it unnecessary given the affirmance under the traditional Gissel framework.
Judge Clifton dissented on the remedy. He agreed that substantial evidence supported the unfair labor practice findings and that setting aside the election was appropriate, but argued the Board's Gissel bargaining order rested on a false premise. The Board had stated it was agreeing with the ALJ's finding that the possibility of a fair rerun election was "slight" — the key Gissel requirement — but the ALJ made no such finding. To the contrary, the ALJ expressly declined to recommend a bargaining order, concluding that the unfair labor practices had not affected a substantial percentage of the overall unit. Clifton argued that a conclusion resting on a nonexistent finding cannot be sustained under basic principles of administrative review. He also noted that the Board's decision to simultaneously announce a new standard — one that eliminates the "slight" possibility requirement and makes any election-invalidating unfair labor practice sufficient to trigger a bargaining order — and apply it retroactively to this case suggested the Board itself recognized it was on uncertain ground under the existing Gissel framework. Clifton noted that the Sixth Circuit recently set aside that portion of the Board's Cemex decision when the Board attempted to apply the new standard in a different case, Brown-Forman Corp. v. NLRB, 169 F.4th 646 (6th Cir. 2026), and stated he found the Sixth Circuit majority's reasoning more persuasive than the NLRB's contrary position. He would have granted Cemex's petition, vacated the bargaining order, and remanded for further consideration.