Published
April 23, 2025
On April 21, a Regional Director of the National Labor Relations Board (NLRB) filed a complaint against Amazon for failing to negotiate a first contract with a union that had not won an election amongst its workers. Not only had the union not won an election, no election had even been held.
That the NLRB decided to file a complaint anyway highlights one of the great legal travesties of the Biden years — specifically a Board decision called Cemex. Cemex overturned the traditional method of determining workers’ views on unionizing and replaced it with a process that is completely arbitrary, promotes unreliable “card check” procedures, and tramples on the democratic rights of workers.
Prior to Cemex, if a union wished to represent a group of employees, it typically would gather signature cards from workers until it had a majority. At that point, the union would ask the employer to grant recognition and start collective bargaining. However, because the Supreme Court — and other courts as well as the Board — has found that card check campaigns are inferior to secret ballot elections as a means of measuring workers’ opinions, employers did not have to recognize a union based merely on cards. Instead, the union would have to ask for, and win, an election run by the NLRB.
Cemex turns this process on its head. Under Cemex, it is the employer’s obligation to request an election if presented with a union’s unverified claims of a majority. If the employer does not do so, the Board will declare it has recognized the union and require it to start bargaining. But even if the employer does submit a request for an election, the Board can disregard that request simply by claiming that the business has committed an unfair labor practice (ULP) — even if of a minor, technical, or inadvertent nature. And just like that, workers can be denied a vote.
This thoroughly undemocratic process lies behind the Amazon complaint. The Teamsters asserted that they had support from a majority of workers at a California facility called DCK6 and demanded recognition. Amazon, not surprisingly, declined. Rather than request an election, however, the Teamsters simply repeated their demand and then filed a ULP. The Regional Director, citing Cemex, played along and filed the complaint, arguing a failure by Amazon to negotiate.
This coercion by proxy is hardly what was expected when Biden left office and his NLRB General Counsel was fired. Employers anticipated that common sense — like requiring unions to actually win elections if they wanted to represent workers — would again prevail in line with applicable case law and court decisions.
Of course, the Regional Director’s allegation is not the last word. Amazon has the right to contest the complaint, and appeal any verdict to the Board (which currently lacks a quorum) and then to federal court. Ultimately, the complaint may well be overturned or withdrawn. In other words, if the Teamsters are banking on dues from DCK6, they probably shouldn’t start spending them yet.
About the author
Glenn Spencer
Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.
