U.S. Court of Appeals decision puts NLRB elections case on life support

In the iconic 1999 film The Sixth Sense, a nine-year-old routinely sees dead people. In the U.S. 6th Circuit Court of Appeals, we might now be seeing a dead Cemex decision, the one in which the National Labor Relations Board (NLRB) upended over 50 years of precedent regarding union elections and election interference remedies.

Background

As a refresher, before the Board’s Cemex decision in 2023, employers were always free to reject a union’s claim of majority support among members of a proposed bargaining unit when based solely on presentation of cards signed by the employees. The union’s proper pathway in response to such a rejection was to file a petition for a secret ballot election to be conducted by the NLRB. Such elections have always been considered the “gold standard” for determining majority support.

In Cemex Construction Materials Pacific, LLC, the NLRB overturned 52 years of precedent by setting up a regime that put the burden on employers to file for an NLRB election or face a “Cemex bargaining order” for refusing to recognize a union voluntarily. Cemex also allowed bargaining orders to be issued if the Board determined the employer had engaged in unfair labor practices while the petition/election was pending without any election being held.