NLRB’s Cemex precedent conflicts with federal law, wrongly promotes abuse-prone ‘card check’ organizing to detriment of employee rights
Washington, DC (September 11, 2026) – The National Right to Work Legal Defense Foundation filed an amicus brief at the National Labor Relations Board (NLRB) in a case to overturn a Biden-era NLRB decision. The brief argues Cemex must be reversed because it cannot be reconciled with the statutory text of the National Labor Relations Act (NLRA).
The NLRB is the federal agency tasked with enforcing the NLRA and with adjudicating disputes between employers, unions, and individual workers. Under Section 8(b)(7) of the NLRA, Congress said that when a union pickets for recognition, unions have 30 days to file for an election before union picketing becomes an unfair labor practice.
The Foundation’s brief, filed in Amazon.com Services LLC (NLRB Case No. 20-CA-353378), notes that Cemex’s invented 14-day deadline for employers, absent an employer request for an election, to recognize a union after the union demands recognition “cannot be reconciled” with Section 8(b)(7), especially in light of the Supreme Court’s 2024 Loper Bright decision.
The brief notes: “[Cemex] cannot be squared with Section 8(b)(7)…[which] is predicated on the fact that the Act does not obligate employers to recognize unions. And, contrary to Cemex’s requirement that employers petition for an election or recognize the union, Section 8(b)(7) places the burden on unions that picket for recognition to file an election petition to avoid committing an unfair labor practice (‘ULP’).”
The brief also highlights other flaws inherent in Cemex, including that it “incentivizes union recognition based on a mere union demand—regardless of actual majority support—while diminishing use of the best way to determine majority support, secret-ballot elections.”
As the brief points out, Cemex runs contrary to the interests of workers whose votes against unionization are discarded and who have union representation forced on them through the abuse-prone card check method. This disenfranchisement is triggered whenever the Board finds that the employer committed a ULP—even if that violation had no effect on the workers who opposed the union.
Foundation staff attorneys have, and continue to, provide legal assistance for workers in several cases targeted by the abuse-prone card check organizing, including victims of union pressure tactics, lies, and threats. This includes Foundation attorneys specifically challenging the original Cemex decision in a federal court case filed for a Seattle Mariners employee dating back to 2024.
“For roughly three years the Biden Board’s Cemex decision has—in violation of the clear text of federal law—let union bosses’ say-so substitute for what workers actually decide in a private, secret-ballot vote.” commented National Right to Work Foundation President Mark Mix. “The new NLRB majority should quickly overturn Cemex and other biased Biden and Obama-era precedents on the books that promote union boss power to the detriment of the rights and freedoms of workers.”
The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.
