U.S. Court of Appeals decision puts NLRB elections case on life support
by Paul J. Zech, Felhaber Larson
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.