News
Goldberg Kohn’s employer-side Labor & Employment attorney Meredith Kirshenbaum shares her insights on forthcoming challenges to National Labor Relations Board rulings in Law360’s “5 Labor Cases to Watch in the 2nd Half of 2025,” published July 7, 2025. These rulings eased bargaining orders and limited how employers can respond to union election campaigns.
Cemex Construction Materials Pacific LLC v. National Labor Relations Board
The Law360 article authored by Branden Campbell first discusses the NLRB's decision to revamp union elections in a case involving Cemex Construction Materials Pacific. The Ninth Circuit is considering the company's challenge to the landmark precedent shift.
The board's August 2023 decision in Cemex changed its handling of union elections in two ways that the then-Democratic majority intended to facilitate worker organizing. The decision puts pressure on employers to voluntarily recognize unions on the front end, holding that employers whose workers demand to unionize must either recognize their union or seek an election to test the employees' support. And it lowered the bar for forcing employers to recognize and negotiate with unions on the back end, subjecting them to bargaining orders if they taint elections in ways that would previously have triggered a rerun vote under the board's precedent.
In its appeal brief last year, Cemex argued that the NLRB’s ruling conflicts with the U.S. Supreme Court's 1969 ruling in NLRB v. Gissel Packing and decades of practice based on it. In Gissel, the Supreme Court said the NLRB may order employers to bargain when they have committed severe enough unfair labor practices to make it unlikely that another election would be fair.
"I would anticipate that when there is a [Republican majority on the] board that the Cemex standard is reversed, but in the meantime, the practical implications could be significant"
The Ninth Circuit heard arguments in October 2024. An opinion vacating the board's decision would block it from enforcing Cemex orders in the Ninth Circuit but not elsewhere, because the board's policy is not to take cues from single circuit courts.
Meredith Kirshenbaum says in the article that employer petitions haven't supplanted union-initiated elections as the norm despite early speculation that this might be the case. Nor has the ruling yet yielded a flood of bargaining orders, but that could just be a lag given the amount of time it takes the board to litigate unfair labor practice cases, she said.
"I would anticipate that when there is a [Republican majority on the] board that the Cemex standard is reversed, but in the meantime, the practical implications could be significant," she is quoted as saying.
The case is Cemex Construction Materials Pacific LLC v. National Labor Relations Board, case numbers 23-2302, 23-2377 and 23-2081, in the U.S. Court of Appeals for the Ninth Circuit.
Amazon.com Services LLC v. National Labor Relations Board
Meredith is also quoted in Law360’s coverage of the second case, which involves Amazon. On November 13, 2024, the NLRB reversed a more than 70-year-old precedent by forbidding employers to hold so-called captive audience meetings during union campaigns. This case is also up for review in the Eleventh Circuit.
The NLRB’s ruling found that the employers' responses to union campaigns interfere with workers' freedom to exercise their rights by forcing them to hear their employers' views. The board said employers may hold meetings to share their views on unions only if they alert workers to the subject in advance, make the meetings voluntary, and do not take attendance.
The decision reversed precedent from a 1948 ruling, Babcock and Wilcox, which permitted employers to hold mandatory anti-union meetings. That decision applied a 1947 NLRA amendment, which established that employers' statements of their views on unions "shall not constitute or be evidence of an unfair labor practice" unless accompanied by threats.
Amazon has invoked the First Amendment in its challenge to the board's pivot. It argued Congress enacted NLRA Section 8(c) — the language added by the 1947 amendment — to protect employers' rights to express their views about labor matters, and that the ruling restricts that right.
In the Law360 article, Meredith Kirshenbaum says that the board's change in policy came in the middle of a trend of states passing laws that bar employers from making workers sit through meetings on certain subjects, including unions. If the Eleventh Circuit finds the NLRB can bar captive audience meetings, that would suggest states can't under a preemption doctrine holding that states can't regulate areas Congress assigned to the labor board, Meredith said.
"Generally speaking, there's a strong argument that when states try to regulate speech in a way that's inconsistent with the National Labor Relations Act, that it's preempted," she is quoted as saying.
The case is Amazon.com Services LLC v. National Labor Relations Board, case number 24-13819, in the U.S. Court of Appeals for the Eleventh Circuit.
The remaining three cases discussed in the article are:
- Siren Retail Corp., case numbers 25-6926 and 24-7342, in the U.S. Court of Appeals for the Ninth Circuit.
- SpaceX v. NLRB, case number 24-50627; Energy Transfer LP v. NLRB, case number 24-40533; and Aunt Bertha v. NLRB, case number 24-10855, in the U.S. Court of Appeals for the Fifth Circuit.
- Service Employees International Union v. National Labor Relations Board, case number 25-1119, in the U.S. Court of Appeals for the District of Columbia Circuit.
