Rejigged NLRB likely to target Cemex rule, used by Teamsters to organize

Getting a work force organized through that process is known as card check. And the Teamsters recently said they had organized workers at the DRI1 facility of Amazon (NASDAQ: AMZN) in Providence, Rhode Island through card check, though the union did not use that term in its prepared statement. 

There is no recent record of a traditional unionization vote at DRI1 in the NLRB’s data base of actions.  There can be a lag in the NLRB’s publication of election results, but there is nothing in the Teamsters statement to suggest there was a traditional election. 

But regardless of what happens in Rhode Island, or at other work sites that unions have sought to organize through card check, the Cemex precedent has been the key to those efforts. And it is clearly threatened.

In the August 26 memo to regional directors and other NLRB officials, Carey spelled out the “further guidance (on) General Counsel priorities.” Weakening the Cemex precedent was on the list.

“To ensure transparency in relation to my priorities, I am issuing this memorandum to identify cases where I have requested or intend to request the Board to revisit certain Precedents,” Carey wrote. She added the memo doesn’t require that cases in the regions be submitted to the NLRB’s Division of Advice. But “regions have been, and continue to be, provided with guidance on best practices to use in the settlement, and prosecution, of the cases and issues discussed in the memo.”

Cleaning up the NLRB backlog

Carey, who took over her role in January, said overturning precedents is not her top priority. Rather, it is clearing a lengthy backlog that grew as empty seats on the NLRB went unfilled. The NLRB went months with just two members, short of a quorum. 

The board now has four members, with three of them Republicans. With that, precedents can be overturned if a relevant case comes before it.

The list of precedents on Carey’s focus list is a long one. Cemex is just one of many.

Several of the precedents, including Cemex, have not been in front of the NLRB yet, and Carey said she has therefore not had an opportunity to make her case before the commissioners. 

But on the top of that list in the memo is Cemex. That decision, Carey said, “is contrary to Supreme Court precedent and sound labor policy.”

Back to the Gissel precedent

She added the precedent that Cemex overturned, NLRB vs. Gissel Packing from 1969, as well as other cases from 1971 and 1973, should be “reaffirmed.”

“Carey intends to seek reinstatement of Gissel Packing, under which the Board held that issuance of a bargaining order is appropriate where an employer who has rejected a card majority has committed unfair labor practices which have made the holding of a fair election unlikely, or which have undermined a union’s majority, caused an election to be set aside, and made the holding of a fair rerun election unlikely,” Benesch wrote in its commentary on Carey’s memo. 

The key there is the unfair labor practice charge, which Cemex no longer established as a prerequisite to ordering a successful card check effort be recognized.

One of the older cases cited by Carey in her memo is Linden Lumber. Benesch describes the core of that decision as “an employer does not commit an unfair labor practice for refusing to accept evidence of the union’s majority status other than the results of a Board election, such as authorization cards.”

The Teamsters are not just approaching unionization through card check. The union recently scoured a victory at a warehouse in the Oakland, California area, winning a traditional vote. 

Success at a casino

It also has organized workers through card check where the company recognized those efforts. 

For example, according to the Teamsters, 110 casino workers at the Black Hawk Casino in the town of that same name in Colorado organized through card check, according to a prepared statement by the union. 

That card check drive came with Bally’s, the casino owner, knowing what was going on, the union said. “In November 2025, (the union) and Bally’s reached a landmark neutrality agreement,” the union said. “Under the card check process, Bally’s workers were able to choose union representation with the Teamsters by signing authorization cards.”

An email sent to the Teamsters had not been responded to by publication time. 

The Cemex precedent already had been under pressure at the NLRB. Early in the Trump administration, the acting general counsel William Cowen rescinded guidance by his Biden-era predecessor supporting the Cemex standard.

But that is not the same as action taken by a permanent general counsel leading to a board decision to overturn a precedent, which is where the Cemex decision is now likely heading. 

A possible case that may give the NLRB the opening to overturn the Cemex precedent could be a unionization effort that so far has been successful for the Teamsters.

Possible test case

An NLRB administrative law judge earlier this year ruled that under the Cemex precedent, Amazon needed to bargain with a group of warehouse workers who had submitted a majority of authorization cards at a facility in San Francisco.

The docket for that case shows no activity before the NLRB since it was transferred to the full board after the ALJ decision. 

Michael Silverstein, the ALJ who handed down that ruling, said in his decision that the case was the first case after Cemex “alleging the commission of an unfair labor practice simply because the employer did not file an RM-petition and declined to recognize the union upon the presentation of a demand for recognition,” he wrote. 

An RM-Petition, according to the NLRB, may be filed by an employer “under certain circumstances to determine support for a new union or to determine whether there is continuing support for an incumbent union. A majority of votes decides the outcome.” One of those circumstances would be a successful card check drive.

The Cemex precedent also took a blow in the Sixth Circuit earlier this year. That court ruled, in a dispute between the Teamsters and Brown Forman (NYSE: BF-B), that the NLRB had overstepped its authority in creating the Cemex rule without a formal rulemaking. 

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