In re Cemex Constr. Materials Pac.

• Decision Date: 16 December 2021
• Docket Number: 28-CA-235666,28-RC-232059,31-CA-238240,28-CA-230115,31-CA-238239,31-CA-237882,31-CA-238094,31-CA-237894,28-CA-249413
• Parties: CEMEX CONSTRUCTION MATERIALS PACIFIC, LLC v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS CEMEX CONSTRUCTION MATERIALS PACIFIC, LLC Employer and INTERNATIONAL BROTHERHOOD OF TEAMSTERS Petitioner
• Court: National Labor Relations Board

CEMEX CONSTRUCTION MATERIALS PACIFIC, LLC and INTERNATIONAL BROTHERHOOD OF TEAMSTERS CEMEX CONSTRUCTION MATERIALS PACIFIC, LLC Employer and INTERNATIONAL BROTHERHOOD OF TEAMSTERS Petitioner

Nos. 28-CA-230115, 28-CA-235666, 28-CA-249413, 31-CA-237882, 31-CA-237894, 31-CA-238094, 31-CA-238239, 31-CA-238240, 28-RC-232059

United States of America, National Labor Relations Board

December 16, 2021

Fernando J. Anzaldua, Esq. Winkfield F. Twyman, Esq. Kristina Robertson, Esq. for the General Counsel.

Caren P. Sencer, Esq. (Weinberg, Roger & Rosenfeld) for the Charging Party

Alan M. Bayless Feldman, Esq. Ross M. Gardner, Esq. (Jackson Lewis, PC), for the Respondent.

1

DECISION

John T. Giannopoulos, Administrative Law Judge

Statement of the Case

John T. Giannopoulos, Administrative Law Judge. The issues involved in this matter stem from an organizing drive among certain Southern California and Las Vegas, Nevada based ready-mix drivers employed by Cemex Construction Materials Pacific, LLC (Respondent or Cemex) who sought to be represented in their workplace by the International Brotherhood of Teamsters (Teamsters or Union). An election was held on March 7, 2019 which the Union lost. The Teamsters filed multiple unfair labor practice charges relating to Respondent's conduct both before and after the election, along with objections to the election (Objections). Ultimately, a Consolidated Complaint and Notice of Hearing issued (Complaint), which was subsequently amended, alleging that Cemex committed multiple unfair labor practices. As part of the remedy for the Complaint allegations, the General Counsel asserts that a bargaining order is necessary as set forth in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), or in the alternative that certain additional remedies be ordered to ensure a fair second election can occur. On September 20, 2020 an Order issued consolidating the allegations contained in Union's Objections with those in the Complaint for hearing. This case was tried before me over a 24-day period between November 2020 and February 2021. Because of the compelling circumstances presented by ongoing Covid-19 pandemic, pursuant to a stipulation by the parties, the trial occurred via videoconference.

Based upon the entire record, including my observation of witness demeanor, and after considering the briefs filed by the General Counsel, the Union, and Respondent, I make the following findings of fact and conclusions of law.^[1]

I. JURISDICTION AND LABOR ORGANIZATION

Respondent is a Delaware corporation that produces cement, ready-mix concrete, and aggregates, with operations in Southern California and Las Vegas, Nevada. In conducting its business operations, each year Respondent purchases goods and materials valued in excess of $50, 000 directly from points located outside of Nevada and California. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Sections 2(2), (6), and (7) of the National Labor Relations Act (the Act or NLRA). Respondent also admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. Accordingly, I find that this dispute affects commerce and the National Labor Relations Board (NLRB or the Board) has jurisdiction pursuant to Section 10(a) of the Act.

II. FACTS

A. General Background

Respondent is a subsidiary of CEMEX, S.A.B. de CV, a multinational building materials company headquartered near Monterrey Mexico, whose stock is traded on the New York Stock

2

Exchange under the symbol CX.^[2] For the year ending December 31, 2019, CEMEX, S.A.B. de CV had revenues of just over $13 billion and a gross profit of over $4.3 billion. The company has operations in North America, Central America, South America, Europe, the Caribbean, Asia, the Middle East, and Africa.

The facilities at issue in this matter involve Cemex's ready-mix plants in Las Vegas, Nevada and Southern California. Ready-mix concrete is a mixture of cement powder, stone, sand, and additives. See Irving Ready-Mix, Inc., 357 NLRB 1272, 1275 (2011). The product is made on demand at batch plants where the proper proportions of material are measured and loaded into large hoppers. Each plant has a batchman, also referred to as a plant foreman, who is responsible for ensuring that the accurate portion of aggregate, cement, and additives are mixed into the delivery truck's drum. The batchman works in an office, and based upon on the specifications for each particular load, programs the information into a computer system which measure's the correct mixture. Ready-mix trucks pull underneath the hopper, sometimes referred to as the “plant, ” and the dry material is loaded into a large bubble-style drum on the back of the truck. The loaded truck then pulls out from underneath the plant, and the driver adds water to the load as specified in the customer's order. This process is referred to as slumping. The concrete slump measurement goes from 1 (very dry) to 10 (very wet) and gauges the moisture content in the concrete. Once the concrete is slumped, it needs to be delivered to the customer within 90 minutes.^[3] (Tr. 105, 272, 282-283, 603, 1040, 1288, 2337, 2395, 2449; JX. 6)

On December 3, 2018, the Teamsters filed a petition to represent Cemex's Southern California and Las Vegas based ready-mix drivers. A hearing occurred in December 2018, and on February 20, 2019, the Regional Director for NLRB Region 28 ordered that an election be held on March 7, 2019 in the following unit of Respondent's employees (Unit):

All full-time and regular part-time ready-mix drivers, plant operators II who regularly operate ready-mix trucks, and driver trainers employed by the Employer at its ready-mix facilities in Southern Nevada and Southern California including its plants in Las Vegas, North Las Vegas, and Sloan, Nevada, and Compton, Corona, Escondido, Fontana Highland, Hollywood, Irvine, Los Angeles, Moorpark, Oceanside, Orange, Oxnard, Perris, Rialto, San Diego, San Juan Capistrano, Santa Barbara, Santa Paula, Simi Valley, Temecula, and Walnut, California, excluding all other employees, batch men, yardmen, yardmen/laborers, plant maintenance employees, plant maintenance employees II, plant maintenance foremen, fleet mechanics, fleet mechanic foremen, mechanic foremen, senior driver trainers/safety champions, plant foremen, dispatchers, quality control

3

representatives, office clerical employees, professional employees, guards and supervisors as defined in the Act.

In substance, the Unit constitutes all of Respondent's ready-mix drivers in Southern California and Las Vegas, Nevada, including a limited number of drivers who also sometimes work as second/assistant batchmen. The voter list provided to the NLRB by Respondent contained a total of 373 drivers, of which 40 were based in Las Vegas, Nevada, and 333 were assigned to the various Cemex plants in Southern California. The election was held as scheduled and the ballots were tallied. The Union lost the election 166 to 179. (JX. 3, 9, 11)

On March 19, 2019, the Union filed its Objections to the election. Respondent filed a motion to dismiss which was denied by the Regional Director and the Board. The following Objections were consolidated by the Regional Director for a hearing with the Complaint's unfair labor practice allegations: (1) During the critical period, area manager Ryan Turner approached multiple employees at various work locations, threatening them with a loss of protection and benefits from the Employer in the event that they voted for the union. Similar statements were made by manager Lorenzo Ponce; (2) Cemex threatened the employees with closing of batch plants or other adverse consequences if they supported the union; (3) Cemex, through its agents, threatened employees with changes of job shifts in the event that they voted yes for the Union; (4) Cemex provided more favorable treatment to employees taking a Vote No stance from those supporting a Demand Your Worth stance by requiring employees who were demanding their worth to take off safety vests and remove signage with union logos or “Vote Yes” messages while allowing those with Vote No messages to keep items in their vehicles or on display while on work time; (5) Cemex allowed employees expressing a Vote No message to campaign for their position while on work time, while denying that same benefit to employees with a “Vote Yes” message; (6) Cemex held captive audience meetings excluding employees who had taken pro-union positions. This not only excluded alternative opinions, but required pro-Union employees to perform additional services while allowing anti-union employees to sit in Employer meetings while being provided refreshments on work time; (7) Cemex engaged in acts of surveillance of employees during the critical period; (8) Cemex increased the use of security at all locations during the critical period in attempts to intimidate employees; and (9) during the election, Cemex intimidated employees seeking to enter batch plants to vote by surrounding vehicles with eight to ten anti-union employees and managers before the employee could enter the polling area. With a few exceptions, the Union's objections correspond substantially with the unfair labor practice allegations contained in the Complaint. (GC. 1(x))

Sixteen ballots were challenged during the election and the Regional Director's Order directed a hearing on these ballots. However, the parties reached a stipulation regarding three of the ballots which, in turn, resulted in the challenges no longer being determinative and the issue was not further litigated during the hearing. The parties also stipulated that, despite the voter list, the Unit has a maximum of 366 drivers. (JX. 1, 12; Tr. 12, 1550-1551, 1749, 1992-1993)

B. Respondent's Operations

During the relevant time period, Bryan Forgey worked as...