A major organizing tool used by the Teamsters and other labor unions is once again facing pressure from the Trump administration, as the National Labor Relations Board (NLRB) now has a Republican majority and enough members to form a quorum.
At the center of the dispute is the Cemex precedent, a Biden-era NLRB decision that has played an important role in union organizing campaigns based on authorization cards rather than traditional elections.
As the Benesch law firm explained in a recent commentary on a memorandum issued by new NLRB General Counsel Crystal Stowe Carey, the Cemex decision established that when a union asks an employer for recognition after claiming that a majority of employees in a bargaining unit have designated it as their representative, the employer must either recognize and bargain with the union or promptly file a petition for an election.
That employer-filed petition is known as an RM petition.
Card check has become a key organizing strategy
The process of organizing workers through authorization cards is commonly referred to as card check, and the Teamsters have increasingly relied on the approach in several organizing campaigns.
The union recently announced that it had organized workers at Amazon’s DRI1 delivery facility in Providence, Rhode Island, through a card-check process. Although the Teamsters did not specifically use the term “card check” in their prepared statement, the circumstances point to that method.
There is no recent record of a traditional unionization election at DRI1 in the NLRB’s database of actions. Election results can take time to appear in the agency’s records, but the Teamsters’ announcement contains no indication that workers went through a conventional election.
Whatever ultimately happens in Rhode Island, however, the Cemex precedent remains central to union campaigns using card check and that precedent is now clearly under threat.
In an August 26 memorandum addressed to regional directors and other NLRB officials, Carey outlined what she described as additional guidance concerning the priorities of her office.
Revisiting and weakening the Cemex precedent was explicitly included among those priorities.
“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 also clarified that the memorandum does not require regional offices to submit cases to the NLRB’s Division of Advice. At the same time, she said regional offices have been and will continue to receive guidance on best practices for settling and prosecuting the cases and issues identified in the memorandum.
Clearing the NLRB backlog comes first
Carey, who assumed the general counsel position in January, emphasized that overturning precedents is not her primary objective.
Her immediate focus, she said, is addressing the NLRB’s substantial backlog, which expanded while vacant seats on the board remained unfilled. For months, the agency operated with only two members, leaving it without the quorum required for many decisions.
The situation has now changed. The board has four members, three of whom are Republicans. That gives the NLRB the ability to reconsider and potentially overturn existing precedents when an appropriate case reaches the board.
Carey’s list of targeted precedents is extensive, with Cemex representing only one of several decisions under scrutiny.
Several of the precedents identified in the memorandum, including Cemex, have not yet returned before the NLRB. Carey acknowledged that she therefore has not yet had an opportunity to present her arguments directly to the commissioners.
Nevertheless, Cemex sits at the top of the list.
Carey argues that the decision is “contrary to Supreme Court precedent and sound labor policy.”
A possible return to Gissel
Carey also identified the precedent that Cemex effectively displaced: NLRB v. Gissel Packing, the 1969 Supreme Court decision, along with other cases from 1971 and 1973.
According to Benesch’s analysis of Carey’s memorandum, the general counsel intends to seek the reinstatement of the Gissel Packing standard.
Under that framework, a bargaining order can be appropriate when an employer rejects a union’s claimed majority and has committed unfair labor practices that make a fair election unlikely. It can also apply when those practices undermine a union majority, result in an election being set aside, and make a fair rerun election unlikely.
The distinction is important because of the role played by an unfair labor practice finding.
Under Cemex, an unfair labor practice was no longer necessarily required before an employer could be ordered to recognize a union following a successful card-check effort.
Another older case highlighted by Carey is Linden Lumber. Benesch characterizes the core of that decision as establishing that an employer does not commit an unfair labor practice simply by refusing to accept evidence of a union’s majority status other than the results of an NLRB election, including authorization cards.
The Teamsters, however, are not relying exclusively on card check.
The union recently celebrated a victory at a warehouse in the Oakland, California, area after workers won a traditional union election.
Card check also succeeds at a Colorado casino
The Teamsters have also successfully used card check in situations where employers agreed to recognize the organizing effort.
One example involved 110 casino workers at Bally’s Black Hawk Casino in Black Hawk, Colorado, according to a statement released by the union.
In that campaign, Bally’s was aware of the organizing effort. The Teamsters said the union and Bally’s reached a “landmark neutrality agreement” in November 2025.
Under the resulting card-check process, employees were able to choose Teamsters representation by signing authorization cards.
The Teamsters had not responded to an email seeking additional comment by publication time.
Cemex was already facing pressure under Trump
The Cemex precedent had already come under pressure earlier in the Trump administration.
Acting NLRB General Counsel William Cowen previously rescinded guidance issued by his Biden-era predecessor that had supported the Cemex standard.
But rescinding general-counsel guidance is not the same as having a permanent general counsel pursue a case before a fully functioning NLRB and seek a formal decision overturning the precedent.
That is the direction in which Cemex now appears to be heading.
A union campaign that has so far produced a significant victory for the Teamsters could provide the NLRB with the opportunity it needs to revisit the rule.
A potential test case involving Amazon
Earlier this year, an NLRB administrative law judge ruled that Amazon was required under the Cemex precedent to bargain with a group of warehouse workers at a San Francisco-area facility.
The workers had submitted authorization cards representing a majority of the bargaining unit.
The NLRB docket for the case shows no activity before the full board since the matter was transferred following the ALJ’s ruling.
Administrative Law Judge Michael Silverstein described the case as the first proceeding after Cemex to allege an unfair labor practice based solely on an employer’s failure to file an RM petition and its refusal to recognize a union after receiving a demand for recognition.
The NLRB explains that an RM petition can be filed by an employer in certain circumstances to determine whether workers support a new union or whether an incumbent union continues to have majority support. The outcome is decided by a majority of votes.
A successful card-check campaign can create one of the circumstances in which such a petition becomes relevant.
The Cemex framework has also suffered another setback this year.
The Sixth Circuit Court of Appeals ruled in a dispute involving the Teamsters and Brown-Forman that the NLRB had exceeded its authority by creating the Cemex rule without going through a formal rulemaking process.
With the NLRB now operating with a Republican majority and General Counsel Carey openly identifying Cemex as a precedent she wants the board to revisit, the future of the card-check framework could soon be tested in a much more consequential way.
For the Teamsters and other unions that have used authorization cards as an organizing tool, the outcome could determine how much power that strategy retains under the reshaped NLRB.
