Employers may have to wait for some of the most controversial decisions from the Biden-era National Labor Relations Board (“NLRB” or “Board”) to be narrowed or reversed. Two cases that have been particularly troubling for employers in recent years include the Cemex decision from 2023 and the Thryv decision from 2022. See Cemex Construction Materials Pacific, LLC v. Teamsters, 372 NLRB No. 130 (Aug. 25, 2023) and Thryv, Inc. v. IBEW Local 1269, 372 NLRB No. 22 (Dec. 13, 2022).
In Cemex, the Board was asked to review a case involving a campaign by the Teamsters to unionize a workforce of truck drivers operating out of 24 facilities in California and Nevada. Although the employer narrowly won the election, an Administrative Law Judge found that the employer had committed a series of unfair labor practices (“ULPs”) and, in keeping with long-standing practice, ordered that a new election be held. On appeal, the Board determined that merely directing a new election could not sufficiently remedy the “chilling effect” of the ULPs and instead ordered the employer to recognize and bargain with the union. Cemex represented a significant change in NLRB practice, by creating a “default” position of forced recognition and bargaining in lieu of the long-standing practice of ordering a new election except in truly extraordinary circumstances (which were not at issue in Cemex). This decision greatly changed the landscape of organizing campaigns by encouraging unions to allege and even solicit ULPs in hopes of being granted representation without regard to the demonstrated choice of impacted employees in a secret ballot election.
Cemex also changed the rules for recognition. Before Cemex, Unions that were able to secure authorization cards from a majority of employees could request voluntary recognition from the employer. However, if the employer refused (which was almost always the case) the union was required to file a petition for election with the appropriate NLRB regional office. The Cemex Board ruled that upon receipt by an agent of the employer of a demand for recognition from a union representative, the employer has fourteen days to file its own petition for election with the NLRB or face an order to recognize and bargain with the union – even in the absence of a secret ballot election. Unions typically have much more success gathering authorization cards than winning elections (for the obvious reason that they have more control over obtaining an authorization card in a face-to-face meeting than ensuring an employee’s support in a secret ballot election). In elections lost by unions, it is almost always the case that the union had authorization cards from a majority of employees prior to the election as no union wants to conduct an election without some idea that they can win. The Cemex case allows for the possibility that a union rep will provide notice of majority support to a low-level manager who may have no familiarity with the National Labor Relations Act (the “Act”) or labor law generally. When that manager fails to notify the company or petition for election, the employer could find itself unionized without ever knowing of a union organizing campaign, and without any opportunity to oppose unionization in a secret ballot election.
The Thryv case was equally problematic. The NLRA sets forth “make whole relief” as the remedy for ULPs. Make whole remedies have traditionally included only back wages and restoration of employment and benefits. Accordingly, it has traditionally been relatively easy for employers to evaluate the risk of, for example, the decision to terminate an employee when the employer expected the union to respond with a ULP. Thryv expanded the make whole standard exponentially by allowing for any other damages that were “reasonably foreseeable.” According to the Thryv Board, reasonably foreseeable damages could include: search for work and interim employment expenses, out of pocket medical costs, lost reimbursements, and any other “measurable financial harms caused by the unlawful conduct.” The ability to expand this list is limitless. Consider, for example, late fees and interest on unpaid credit cards or costs associated with the foreclosure of a home. Whether such damages were directly caused by the employer’s decision or a product of a collection of problems including poor financial management or other life events outside the control of the employer, is anyone’s guess. The bottom line is Thryv created a mechanism for creative employees, unions, and lawyers to expand damages well beyond any conceivable make whole remedy. The result is a much more difficult analysis for employers to consider before making discipline and termination decisions with a hostile employee or union.
The Cemex and Thryv decisions have received much criticism. Moreover, their departure from such long-standing precedent left many to opine that a more employer-friendly NLRB would certainly narrow or overturn the decisions. This opinion seemed further justified by the fact that three of the four federal circuit courts of appeals to have considered the question have refused to follow Thryv, and the Ninth Circuit is currently considering whether to follow or disapprove Cemex. The future of these decisions, however, depends on the makeup of the five-person Board. After President Trump was sworn in, he took the unprecedented decision to fire one of the Biden-era appointees, Gwynne Wilcox. This, together with the completion of the five-year term of Marvin Kaplan in August 2025, led to a one-person Board. Cases can’t even be considered without a three-person quorum. However, the Trump administration was not able to appoint new members (James Murphy and Scott Mayer) until January 7, 2026.
As Trump appointees, the new members are expected to take a more employer friendly position. The issue remains one of numbers. Under long-standing tradition, the Board has refused to overturn precedent without at least three members deciding in favor of the change. Many thought a Trump Board may abandon this tradition. However, late last month, the Board issued a decision in Lodi Volunteer Ambulance Rescue Squad, Inc. vs. International Association of EMTs and Paramedics Case 22-CA-331846. In Lodi, the Board upheld the expanded remedies in Lodi outlined under Thryv. In a footnote, the two newly appointed Trump members did not express any opinion on the appropriateness of the Thryv remedies and instead explained that they will continue to rely on established precedent, “in the absence of a three-member majority to overrule it.”
For now, employers will need to monitor the Circuit Courts to see how and when decisions like Thryv and Cemex will be applied and hope that the Trump administration is able to confirm at least one more member of the Board in the near future. Time is of the essence as it took five months for the Trump administration to secure confirmation of the most recent appointees in a Republican-controlled Congress. Employers may assume the process will take much longer if the Democrats take control of the Senate in the midterm elections. It appears that Thryv and Cemex will continue for some time as Board precedent and employers should plan accordingly.