interpretation of the NLRA effectively lowered the threshold for issuing a bargaining order from the previous standard. Before Cemex, a bargaining order was used only as an extraordinary remedy when an employer’s misconduct was considered so severe that a fair election was unlikely. Examples included threatening to close a facility if employees voted for unionization or prohibiting employees from speaking with union organizers during company time.
Cemex is now facing pushback in the federal courts. The 6th U.S. Circuit Court of Appeals recently rejected the NLRB’s use of the standard in a case involving Brown-Forman Corp., a whiskey producer, where the union lost an election 45-14. The court agreed that the company committed unfair labor practices but said the NLRB couldn’t use the Cemex standard alone to require Brown-Forman to recognize and bargain with the union. The issue, the court said, was that the board had improperly engaged in rulemaking outside the formal notice-and-comment process when it adopted Cemex.
That ruling gives employers in the 6th Circuit more room to challenge
union-recognition orders based on Cemex, but it doesn’t settle the broader issue. The 9th U.S. Circuit Court of Appeals later upheld a bargaining order in the original Cemex case under an older legal standard without deciding whether Cemex itself was valid. The legal challenges are likely to continue until the Supreme Court weighs in or the NLRB revises the bargaining standard yet again. “It’s a very different way of doing elections and certifications than we’ve had for 70-plus years, which is why this is the big one everybody’s waiting to see if it gets overturned,” Spencer said. “The good news is there’s a clean case out there for them to pick up and run with, versus a lot of the Cemex cases that have moved forward and tended to be a bit messy.”
The case Spencer believes could
provide that opportunity involves an Amazon warehouse in San Francisco. In 2024, representatives for the International Brotherhood of Teamsters approached Amazon claiming to have gathered signed authorization cards from about two-thirds of the facility’s 120 workers. Amazon did not file an RM petition within the two-week
window required by Cemex, eventually leading an NLRB administrative judge to order the e-commerce giant to begin bargaining with the union. Amazon is appealing the decision and the case is expected to establish an important precedent for Cemex challenges. With the recent confirmation of James Macy to the NLRB, giving Republicans a 3-1 majority on the board, the Amazon case is expected to be an opportunity for the Trump administration to reverse the Biden-era standard. “It’s an easy clean case,” Spencer said. “It purely revolves around the Cemex process and is one that the board could use to just go ahead and say, ‘That’s not how we do things.’”
Two OSHA Rules to Watch While the NLRB is focused on employer- employee relations, other federal agencies are reviewing workplace conditions. The Occupational Safety and Health Administration (OSHA) is considering a proposed federal heat standard that would require employers to take specific steps when indoor or outdoor temperatures reach certain thresholds. Once the heat index reaches 80 degrees Fahrenheit, employers would
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