Nearly three years ago, in the Fall 2023 TBA Labor & Employment Connect newsletter, I wrote an article about a then-recent decision from the National Labor Relations Board — Cemex Construction Materials Pacific LLC — that had the potential to dramatically change the landscape of union organizing in workplaces across the country.[1] In Cemex, the board adopted a new standard that encourages employers to recognize and bargain with its employees’ chosen representative without an election by shifting the burden of filing an election petition from the employees to the employer. In doing so, the decision added another tool in the board’s toolbox of remedies to fix the damage done by an employer’s unlawful influence on employees ahead of a unionization election — an order to recognize and bargain with the union even without an election. At the end of that article, I queried how Cemex might impact workplace organizing in practice. Well, dear reader, we now have an answer to that burning question. On March 6, the 6th Circuit issued a decision abrogating the Cemex decision in Brown-Forman Corp. v. NLRB.[2]

In Brown-Forman, the court took issue with the Cemex decision because it set out to establish a new legal standard, rather than resolve the parties’ dispute that was before the board. That, the panel of the 6th Circuit held, was tantamount to creating new law, a power the agency simply did not have. “Thus, because the way in which the Board created the Cemex standard constituted an improper exercise of its statutory authority, the Cemex bargaining order standard is invalid.” [3]

Without Cemex, at least in the 6th Circuit, the same dilemma that the board sought to resolve remains, namely, how to ensure fair representation elections, a right guaranteed by the National Labor Relations Act, when employers take unlawful actions to taint those elections. Finding a solution will fall to a new board now. After nearly a year without a quorum, the five-member board now has three members (a holdover Biden appointee, David Prouty, and two recent Trump appointees, James Murphy and Scott Mayer), as well as newly installed General Counsel Crystal Carey — a position akin to the board’s prosecutor — who was sworn in on Jan. 7.

The general counsel typically sets the board’s policy agenda, which would include the new board’s position on remedies in representation elections. Most labor practitioners expected Carey to advance a position contrary to Cemex. However, Carey has stated that her first priority is tackling the huge backlog of cases pending before the board. Everyone agrees that substantial processing times have hamstrung the board. Official figures put the current processing time for an unfair labor practice charge at upwards of 450 days.  Anecdotally, I think that number is low. The reality is that an employee who suffers harm from an employer’s unfair labor practice, and files a charge with the board, might be awarded relief three, four, or even five years later, a devastating prospect for most workers.

While Carey’s goal of reducing the board’s backlog is certainly laudable, her method for achieving that goal has come as a surprise. The general counsel’s office has instructed board agents, through formal memoranda, to require the charging party to present substantial evidence supporting the ULP charge within two weeks of filing. Otherwise, the charge will be dismissed. In other words, the plan is to reduce the backlog of unresolved charges by dismissing them. This is a sea change for the board, which is, at its core, an investigatory agency. Most ULP charges are filed by statutory employees without the aid of legal representation. Board agents receiving those charges act as investigators, gathering evidence from both the charging party and charged party. Carey’s guidance, however, undercuts this investigatory role, forcing that burden on unrepresented workers. What does the board do when it no longer investigates violations of the National Labor Relations Act? It shrugs.

The situation facing the board is dire. It lacks the staffing and other resources to effectively investigate charges, and it lacks the legal remedies to provide adequate relief for violations of the act. The board’s dire situation cripples enforcement of the act across the country. That is because the act grants exclusive jurisdiction over representation proceedings, i.e., union elections, and unfair labor practice claims — the key statutory rights granted employees by the act – to the board.[4] A number of proposals are being debated currently to replace the board’s exclusive jurisdiction over the act with concurrent federal or state court jurisdiction or even jurisdiction in a newly created Article I court or other agency. Once again, I find myself concluding an article in this newsletter by querying how these happenings at the board might impact workplace organizing in practice. The end of Cemex remedies is a big development, even though the decision was around for only a few years. The end of the board, after 91 years of existence, would be even bigger.

Karla Campbell practices employment law, in particular ERISA, and traditional labor law at Stranch Jennings & Garvey in Nashville. She is a long-time member of the AFL-CIO’s Union Lawyers’ Alliance and a frequent speaker on labor law topics.