As discussed here, the 2023 National Labor Relations Board (NLRB or Board) ruling in Cemex Construction Materials Pacific, LLC (Cemex) deviated significantly from decades-long precedent regarding the voluntary nature of card check recognition. 

In Cemex, the Board found that the employer’s anti-union activity so tainted the election that its only remedy was to set aside the election results. As a result, the standard set by the NLRB made it an unfair labor practice to refuse to recognize, upon request, a union designated as a representative by the majority of employees in an appropriate unit unless the employer promptly files a Representation Management (RM) petition to test the union’s majority status or the appropriateness of the unit. 

One challenge to this controversial ruling has resulted in a decision by the Sixth Circuit Court of Appeals invalidating the NLRB ruling and calling into question its decision-making authority. Finding that Cemex established “a general rule of broad applicability” through Board adjudication rather than a formal rulemaking process, the Court’s decision challenges the Board’s authority in creating governing precedent through adjudication as opposed to establishing rules in alignment with its overarching purpose as a regulatory body. 

What Does It Mean? 

Even though the Sixth Circuit’s ruling is binding only in cases appealed to that jurisdiction, it has broad implications for existing and future challenges. For example, Cemex remains under review by the Ninth Circuit Court of Appeals. It is unclear if—or to what extent—the Ninth Circuit will consider or adopt the Sixth Circuit’s ruling. Conflicting rulings among the circuit courts, or a controversial ruling by the Ninth Circuit, could result in a further appeal to the U.S. Supreme Court, thereby extending any final decision into the unforeseeable future. 

Until the Cemex case has run its course through the courts, employers are left navigating the defense of bargaining orders through a mix of traditional standards and the still-existing Cemex framework. 

As for any lasting impact on the NLRB, it remains to be seen how this may affect other similar cases in which the Board could be challenged for establishing rules through an adjudicative process, as opposed to using its formal rulemaking authority.