In today’s News & Commentary, Cemex is headed to the Ninth Circuit for review and General Council Abruzzo pushes back on calls for student athlete employee status legislation. 

Today, the Ninth Circuit is set to hear oral arguments in Cemex Construction Materials Pacific LLC’s challenge to the NLRB’s 2023 ruling in their case which established the doctrine that bears the company’s name. Under the Cemex framework, if a union demonstrates majority support and the employer demands an election but then commits ULPs, the NLRB is authorized to grant a bargaining order even without waiting for the results of or re-running that election. Luke reported on one such Cemex order back in June, and the NLRB is currently pursuing bargaining orders under the doctrine in cases against Starbucks, Trader Joe’s, and more. 

Brian Petruska, general counsel for the LIUNA Mid-Atlantic Regional Organizing Fund, told Bloomberg Law that evidence of Cemex’s positive impacts can be seen in the rise in union election petitions filed with the Board—up 27% from last year. “That would be a sign of a better functioning system, a system with more legitimacy that’s better able to provide a means of union representation,” Petruska stated. 

Cemex argues in their brief that the new doctrine fundamentally changed the processes and circumstances which trigger bargaining obligations, and thus runs afoul of the major questions doctrine. The Board countered in that this action is not the sort that would trigger major questions review, as it is consistent with both the Board’s authority and past precedent upheld by both the Ninth Circuit and Supreme Court. 

The case will be heard by a three-judge panel consisting of Judge Richard Clifton, appointed by George W. Bush, and Judges Jennifer Sung and Gabriel Sanchez, both appointed by President Biden.

Speaking at a symposium on the changing legal landscape of college athletics, NLRB General Counsel Jennifer Abruzzo pushed back against calls for Congress to pass new legislation to address the question of employee status for college athletes. “There is legislation. It’s called the National Labor Relations Act. It’s in existence right now and it’s the statute I enforce,” said Abruzzo. 

Currently, the NCAA has been pressuring lawmakers to pass legislation which would grant the Association antitrust immunity and deny workers’ rights to their players. This push comes amidst an uncertain future for college athletics’ traditional model of “amateurism”. In July, I reported on the settlement currently in the works which could institute revenue sharing for college athletes, while Divya and others have covered Dartmouth mens’ basketball players’ push for formal recognition of their union. Additionally, the Third Circuit held that calling players “amateurs” could not fend off wage and hour claims, and the NLRB is also hearing another case involving football players at the University of Southern California. 

Citing professional sports leagues as a potential model, Abruzzo stated that the solution to collective bargaining for college athletes may well be a sectoral model. “There’s health and safety issues, anti-discrimination policies, grievance and arbitration issues, and many other non-economic issues that transcend one school or one conference,” Abruzzo said. “You should be looking at the broader issues, and I agree collective bargaining is the way to go.”