Judge Takes First Pass at NLRB’s Cemex Test

For the first time, a federal judge applied the National Labor Relations Board’s Cemex standard to a suit involving a cannabis company seeking a Section 10(j) injunction, a tool allowing the board to petition courts to stop labor violations. The judge held that the board showed “a strong likelihood of success on the merits” of its union-busting claims under Cemex, which made it easier for the board’s prosecutors to make employers bargain with workers whose labor rights they violate. Hugh Murray, Chair of McCarter’s Labor & Employment Practice, spoke with Law360 and said that while the judge chalked the cannabis company’s arguments about the Cemex standard’s fate up to “mere fortune-telling,” other courts hearing Cemex cases may consider such arguments in the future because court review bears on the board’s likelihood of success.