NLRB General Counsel Targets Union Card-Check Rule in August Memo, Setting Up Precedent Reversal

The National Labor Relations Board's General Counsel Crystal Stowe Carey issued a memo on August 26 identifying the Cemex precedent—a Biden-era rule enabling unions to organize through card-check campaigns—as a target for reversal, according to FreightWaves. The board now holds a 4-member Republican majority with a functioning quorum, providing the votes needed to overturn the 2023 decision that unions have used to organize workers at Amazon and other employers without traditional secret-ballot elections.

Carey's memo to regional directors called the Cemex decision "contrary to Supreme Court precedent and sound labor policy" and signaled intent to restore the 1969 Gissel Packing standard that preceded it. Under Cemex, employers who receive a union recognition request backed by signed authorization cards from a majority of workers must either recognize the union immediately or file a petition for an election. The earlier Gissel standard required proof of employer unfair labor practices before the board would order recognition based on card signatures alone.

The Teamsters union has deployed card-check organizing at multiple facilities since the Cemex ruling took effect in August 2023, including at Amazon's DRI1 warehouse in Providence, Rhode Island, where the union announced it had organized workers without disclosing a traditional election. NLRB election records contain no recent vote at that facility, according to FreightWaves.

General Counsel Lists Cemex Among Multiple Precedents for Review

Carey, who assumed the General Counsel role in January 2026, told NLRB regional officials that clearing a lengthy case backlog remains her top priority, but her August 26 guidance identified 13 precedents she intends to challenge when relevant cases reach the board. Cemex topped that list.

"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 in the memo, which Benesch law firm analyzed in a September commentary. The guidance does not require regional offices to submit every case involving the listed precedents to the board's Division of Advice, but provides "best practices to use in the settlement, and prosecution" of those cases.

The board operated for months with just two members—below the three-member quorum needed to issue binding decisions—before President Trump's appointees filled the vacancies. With four commissioners now seated and three holding Republican appointments, precedent reversals require only a case that presents the legal question.

Teamsters Used Card Check at Casino, Amazon Facilities

The union organized 110 workers at Bally's Black Hawk Casino in Colorado through a card-check drive that the company cooperated with under a November 2025 neutrality agreement, according to a Teamsters statement reviewed by FreightWaves. That agreement allowed workers to sign authorization cards without an election.

The union described the Black Hawk organizing as proceeding through "the card check process" under which "Bally's workers were able to choose union representation with the Teamsters by signing authorization cards." The company agreed not to campaign against the union effort under the neutrality pact.

At Amazon's Providence warehouse, the Teamsters announced successful organizing without using the term "card check" in its public statement, but the absence of any election record and the union's claim of representation suggests the Cemex framework enabled the drive. The union did not respond to requests for comment by publication time.

The Teamsters have also pursued traditional secret-ballot elections, winning a recent vote at a warehouse in the Oakland, California area, demonstrating that the union deploys multiple organizing strategies depending on workplace conditions and employer response.

Return to Gissel Would Require Proof of Employer Misconduct

Carey's memo calls for reinstating the legal framework established in NLRB v. Gissel Packing Co., a 1969 Supreme Court decision that permitted bargaining orders based on authorization cards only when employers committed unfair labor practices that made a fair election unlikely. The Benesch analysis notes that Gissel "held that issuance of a bargaining order is appropriate where an employer who has rejected a card majority has committed unfair labor practices which have made the holding of a fair election unlikely."

The Cemex decision eliminated that requirement, ordering employers to recognize card-majority unions or file for an election even without proof of misconduct. Carey also cited Linden Lumber, a 1971 case holding that "an employer does not commit an unfair labor practice for refusing to accept evidence of the union's majority status other than the results of a Board election, such as authorization cards."

An NLRB administrative law judge ruled earlier in 2026 that Amazon must bargain with the Teamsters at a facility under the Cemex standard, a decision that could serve as the test case for overturning the precedent if Amazon appeals to the full board.

The board's acting General Counsel William Cowen rescinded guidance supporting Cemex earlier in the Trump administration, but that action by a temporary appointee carries less weight than a formal precedent reversal by the permanent General Counsel and board majority.

Context and Outlook

The threat to Cemex arrives as unions attempt to use card-check recognition to accelerate organizing in industries where employer opposition typically delays secret-ballot elections for months. Labor organizers view the 2023 Cemex decision as correcting decades of employer advantage in the election process, while management-side attorneys argue it strips workers of confidential voting rights.

The NLRB's Republican majority can overturn Cemex only when an appropriate case reaches the board for decision, meaning the timeline depends on the pace of appeals from regional rulings. Carey's August 26 memo signals that her office will not defend the precedent in those appeals and will actively support employers challenging card-check orders.

If Cemex falls, unions seeking recognition based on authorization cards would need to first prove employer unfair labor practices under the Gissel standard—a higher bar that requires documenting specific violations during the organizing campaign. That shift would return organizing law to the framework that prevailed for five decades before the Biden board's intervention, potentially slowing union drives in workplaces where employers refuse voluntary recognition.