MURPHY, Circuit Judge. If a police officer violates the Fourth Amendment by conducting a search without probable cause, the “exclusionary rule” requires a court to prohibit the use of any recovered evidence at the defendant’s criminal trial. See generally Mapp v. Ohio, 367 U.S. 643 (1961). In United States v. Leon, 468 U.S. 897 (1984), however, the Supreme Court held the exclusionary rule typically will not apply if the officer obtained a warrant for this search—even if the judge who issued the warrant erred in finding that probable cause existed. See id. at 922. That said, Leon added that the officer cannot rely on the judge’s probable-cause ruling to avoid the exclusionary rule if the affidavit requesting the warrant was so bare bones that no reasonable officer could believe that it established probable cause. See id. at 923. This case, which reaches us for a second time, raises a novel issue under Leon’s framework.

Russell Davis sold fentanyl that caused a deadly overdose. After a thorough investigation, a detective obtained a warrant from an Ohio magistrate to search Davis’s home in Lorain, Ohio. In Davis’s first appeal, the government conceded that the detective’s affidavit in support of this warrant omitted facts showing the required probable-cause “nexus” between Davis and his home. United States v. Davis, 970 F.3d 650, 666 (6th Cir. 2020). But we remanded for an evidentiary hearing because the government contended that the detective had provided additional (unrecorded) oral testimony in front of the magistrate. Id. During this later federal hearing, the detective stated that he believed he had told the magistrate about the evidence connecting Davis to the home, but he could not recall any specifics. The district court held that this general belief sufficed to avoid the “bare-bones” label and thus to trigger Leon’s exception to the exclusionary rule.

We agree for two basic reasons. First, the detective had uncovered overwhelming evidence tying Davis to the home. And second, the magistrate (not the detective) bore any blame for failing to transcribe the detective’s additional oral testimony under state law. We also reject Davis’s other challenges to the warrant. So we now affirm Davis’s conviction in full.

Defendant, Jimmy Dewayne Richards, was convicted by a Fentress County jury of burglary, theft of property, and vandalism. On appeal, the Defendant argues, among other things, that the trial court erred by denying the Defendant’s pretrial motion to suppress. We cannot adequately review on the record before us whether the search was supported by probable cause or whether Defendant lacked standing to challenge the search. The trial court sua sponte raised the standing issue after all the proof was presented at the hearing and did not comply with its duties to judge the credibility of witnesses, to weigh the evidence, and to resolve factual issues in deciding the motion to suppress. We therefore remand this case for a new hearing on the motion to suppress in accordance with the instructions in this opinion.

A mother appeals the termination of her parental rights on the grounds of abandonment by failure to support; abandonment by failure to provide a suitable home; substantial noncompliance with the permanency plans; persistent conditions; and failure to manifest an ability and willingness to assume custody of the children. The mother also appeals the trial court’s finding that termination of her parental rights was in the best interest of the children. We reverse the trial court’s finding on the ground of substantial noncompliance with the permanency plans because the initial permanency plan does not appear in the record, but we affirm the trial court in all other respects.

Jason M. Peterson (“Plaintiff”) was the passenger in a vehicle driven by Jodi L. Carey (“Defendant”) at the time of a motor vehicle accident. Plaintiff filed a personal injury action against Defendant more than one year after the accident. Plaintiff argues that Tennessee Code Annotated section 28-3-104(a)(2) extends the statute of limitations for his action to two years because Defendant was cited for the violation of a traffic ordinance contained in the Kingsport Municipal Code in relation to the accident. The Circuit Court for Sullivan County (“trial court”) applied the one-year statute of limitations set forth in section 28-3-104(a)(1) and granted summary judgment in favor of Defendant. Finding no error, we affirm the judgment of the trial court.

The plaintiff, John H. Packard, IV (“Plaintiff”) was struck by a vehicle driven by Jonathan R. Bentley while Plaintiff attempted to walk across a roadway in Gatlinburg, Tennessee. Plaintiff brought a suit arising in negligence against a number of parties, including the City of Gatlinburg (“City”). As to City, Plaintiff alleged that it created an unreasonably dangerous risk of harm to pedestrians attempting to use the crosswalk because it failed to inspect and maintain LED lights it had previously installed on a nearby crosswalk sign. The Circuit Court for Sevier County (“trial court”) granted summary judgment in favor of City, finding that City negated an essential element of Plaintiff’s claim, that City was entitled to immunity pursuant to the Tennessee Governmental Tort Liability Act (“GTLA”), Tennessee Code Annotated section 29-20-101 et seq., and that City was also immune pursuant to the public duty doctrine. Finding no error, we affirm the judgment of the trial court.

This appeal concerns an inmate’s lawsuit over injuries he sustained from falling off a top bunk bed in prison. Jody Higgins (“Plaintiff”) was an inmate at Silverdale Detention Facility (“Silverdale”). CoreCivic, Inc. operated Silverdale through a contract with Hamilton County. CoreCivic of Tennessee, LLC (the two CoreCivic entities together, “CoreCivic”) employed security at Silverdale. Correct Care Solutions, LLC (“CCS”) provided medical treatment to Silverdale inmates through a contract with CoreCivic. Plaintiff sued CoreCivic, CCS, and Hamilton County (“Defendants,” collectively) in the Circuit Court for Hamilton County (“the Trial Court”) asserting health care liability and other claims. Defendants filed motions for summary judgment, which the Trial Court granted based in part on a lack of expert proof. Plaintiff appeals. He argues among other things that it is common knowledge that Plaintiff, who suffers from seizures, should have been given a bottom bunk pass and anti-seizure medication. We hold, inter alia, that Plaintiff failed to present competent, admissible expert proof in support of his health care liability claim at the summary judgment stage, and that the issues of this case do not fall under the common knowledge exception. Plaintiff’s other claims are barred by the statute of limitations. We affirm.

A recent Tennessee Court of Appeals case carved out a narrow public policy exception to the employment at-will doctrine. In Smith v. BlueCross BlueShield of Tennessee, No. E2022-01058-COA-R3-CV, 2023 WL 3903385 (Tenn. Ct. App. June 9, 2023). th court held that Article 1, Section 23 of the Tennessee Constitution, which provides the right of citizens to petition the government, is a clear and unambiguous statement of public policy representing an exception to the doctrine of employment at-will. Therefore, employers cannot terminate employees for petitioning state representatives.

The plaintiff in this case, Heather Smith, was a former employee of BlueCross BlueShield of Tennessee Inc. In August 2021, BlueCross instituted a policy requiring all public-facing employees to obtain the COVID-19 vaccine. Smith worked from home and had minimal in-person interaction with her coworkers and the public. Nevertheless, her supervisor told her that she needed to follow the mandate. Smith sought to have her job position changed to avoid being considered a public-facing employee, but BlueCross denied her request. Smith then sought a religious accommodation that would allow her to continue working without obtaining the COVID-19 vaccine, but BlueCross rejected Smith’s accommodation request.

Smith then obtained a new position with BlueCross which was not subject to the vaccine requirement. However, in the meantime, the Tennessee General Assembly convened a special session for the purpose of addressing COVID-19 issues. On October 27, 2021, Smith emailed Tennessee state representatives to convey her concerns and grievances regarding vaccine mandates and to request legislative action. On Oct.28, 2021, Smith’s email was read to the COVID-19 Committee of the Tennessee Legislature. A member of the Tennessee Legislature subsequently forwarded Smith’s email to BlueCross.

On Nov. 3, 2021, BlueCross notified Smith that her email violated the company’s social media policy. The next day, BlueCross instituted a new vaccine policy requiring all employees to obtain the COVID-19 vaccine. Smith again emailed Tennessee state representatives to seek legislative protection against vaccine mandates. She specifically included the following language: “the words and opinion expressed within this email are my own and they do not reflect the opinion/views of [BlueCross].” Again, someone sent Ms. Smith’s mail to BlueCross.

On Nov. 5, 2021, BlueCross terminated Smith, alleging that her email to the Tennessee General Assembly violated the company’s social media policy. Smith subsequently filed suit asserting that her termination violated Tennessee’s public policy based on the right to petition set out in Article 1, Section 23 of the Tennessee Constitution. BlueCross filed a motion to dismiss for failure to state a claim, arguing that state or federal constitutional free speech guarantees cannot be the basis for a public policy exception to the at-will employment relationship. The trial court granted BlueCross’s motion to dismiss, but on the basis that it did not have the authority to recognize the right and cause of action advocated by Smith because this public policy exception had not been expressly recognized by either the Tennessee Court of Appeals or Tennessee Supreme Court. Smith timely appealed.

The Tennessee Court of Appeals restated the issue as follows: whether the trial court erred in granting BlueCross’s motion to dismiss on grounds that Tennessee does not recognize a public policy exception to the doctrine of employment at-will based on the right to petition found in Article 1, Section 23 of the Tennessee Constitution.

Under the employment at-will doctrine, employment may be terminated by either the employer or employee at any time, for any reason, or for no reason at all. However, Tennessee recognizes certain exceptions to the employment at-will doctrine, and employees may bring retaliatory discharge actions if they are fired in violation of public policy. The Tennessee Supreme Court set out the following elements of a common law retaliatory discharge claim in Crews v. Buckman Labs. Int’l Inc., 78 S.W.3d 852, 862 (Tenn. 2002): (1) that an employment at-will relationship existed; (2) that the employee was discharged; (3) that the reason for the discharge was the employee’s attempt to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy evidenced by an unambiguous constitutional, statutory or regulatory provision; and (4) that a substantial factor in the employer’s decision to terminate the employee was the employee’s exercise of protected rights or compliance with clear public policy.  

Smith argued that the language of the right to petition provision in the Tennessee Constitution constitutes a clear, unambiguous, well-defined and constitutionally established public policy. The provision reads: “[t]hat the citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address or remonstrance.”

The court agreed with Smith that the Tennessee Constitution unambiguously grants citizens a right to petition and instruct their representatives. It further explained that in limited circumstances, certain well-defined, unambiguous principles of public policy confer implicit rights upon employees which cannot be chilled by the potential of termination. However, the court cautioned that the public policy exception to the employment at-will doctrine cannot be allowed to consume or eliminate the general rule.

BlueCross had argued that the Tennessee Constitution restricts the actions of the state, not private entities and that Tennessee courts have generally declined to find public policy exceptions to employment at-will in other constitutional provisions. BlueCross gave an example that if the constitutional right to free speech were found to be a public policy exception to at-will employment, employees could publicly denigrate their employers and employers would face liability for terminating employees on that basis.

However, the court distinguished the right to free speech from the right to petition in the retaliatory discharge context. It explained that constitutional free speech restrictions are directed at the government, whereas the right to petition makes sense “only as an affirmative undertaking by a citizen.” Clear public policy is violated when an entity, even a private entity, tries to block a citizen from petitioning the government.

Although BlueCross rightly pointed to constitutional provisions which are not extended to private employers, the right to petition goes to a cornerstone of how employees, as citizens, can reach their government. Discharging an at-will employee for simply writing to the Tennessee General Assembly unduly interfered with the employee’s rights as a citizen. While an at-will employee cannot expect the full panoply of rights from a private employer, he or she must be able to seek recourse from the very people that make law.

It is important to note that because the trial court decided the case on a motion to dismiss for failure to state a claim, the Court of Appeals was limited to the facts alleged in Smith’s complaint. BlueCross attempted to argue that Smith’s discharge was justified by her disseminating misinformation, insulting the company and divulging confidential information. However, because Smith only alleged that she was fired for writing to members of the Tennessee Legislature, whether BlueCross could establish an overriding justification or other defense for terminating her was beyond the court’s purview. Based on the simple argument that Smith was fired for exercising her right to petition, the court carved out a narrow public policy exception to at-will employment. In doing so, the court explained that it was not devising a new category of public policy exceptions. Instead, it applied the law to an already existing category because the Tennessee Supreme Court already identified unambiguous constitutional provisions as a source of public policy exceptions. The right to petition as provided in Article 1, Section 23 of the Tennessee Constitution represents an unambiguous public policy of the State of Tennessee that citizens may petition their government. Employers cannot interfere with that right.

Although employers cannot terminate employees for exercising their right to petition, the doctrine of at-will employment remains firmly established in Tennessee. The holding of Smith is limited to the narrow public policy exception involving the right to petition. Furthermore, this exception only applies to communications to the government. If an at-will employee addresses non-governmental people or entities, they cannot benefit from this public policy exception by merely copying a representative on the communication.

Katie Overton is an associate of Kramer Rayson, where her practice focuses generally on employment law - assisting and advising employers on a variety of employment matters arising under state and federal law. She earned her law degree from the University of Tennessee in 2021, where she graduated cum laude. Overton may be reached at koverton@kramer-rayson.com or (865) 342-0431.

Week of October 16, 2023 - October 20, 2023

Introduction

Last year Congress amended the Federal Arbitration Act (FAA) by incorporating the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (“the Act”). The Act provides that, notwithstanding any other provision of the FAA, “at the election of a person alleging conduct constituting a sexual harassment or sexual assault dispute…no predispute arbitration agreement … shall be valid or enforceable with respect to a case which is filed under federal, tribal or state Law, and relates to the sexual assault dispute or the sexual harassment dispute.”[1]

A “sexual assault dispute” is defined as “a dispute involving a nonconsensual sexual act or sexual contact” under the federal criminal code or similar applicable tribal or state law. A “sexual harassment dispute” is defined as “a dispute relating to conduct that is alleged to constitute sexual harassment” under applicable federal, tribal or state law. The Act did not expressly invalidate existing predispute arbitration agreements, but it does apply to any claim that arises or accrues on or after its effective date — March 3, 2022.

Analysis

A. Legislative History

The Act does not, however, address how to deal with cases in which a sexual harassment cause of action is included within the same complaint as other employment-related claims — whether statutory or sounding in tort. The Act simply prohibits arbitration of a case which “relates to” a sexual harassment dispute.

The legislative history of the bipartisan Act provides little additional guidance. [2] Sen. Joni Ernst, R-Iowa, stated the bill “should not be the catalyst for destroying predispute arbitration agreements in all employment matters….” and that harassment claims “should not be joined to an employment claim without a key nexus.” Similarly, Sen. Lindsay Graham, R-South Carolina, stated: “What we are not going to do is take unrelated claims out of the arbitration contract.” On the other side of the aisle, Sen. Dick Durbin, D-Illinois, stated: “There is nothing in the bill directing courts to dismiss related claims and compel them to forced arbitration if a victim ultimately does not prevail on her sexual assault or harassment claim….” Sen. Gillibrand, D-New York, stressed that parties “must follow the rules and plead a case correctly, and … must affirm to the court that they have good-faith basis for doing do.”

Without more guidance, it is not surprising the courts have struggled with determining whether claims are “related” under the Act. The following section discusses the reasoning and results from several courts on this issue.

B. Recent Cases under the Act

In Turner v. Tesla, Inc.,[3] Turner was hired as a production associate in a Tesla manufacturing facility on Nov. 30, 2020, at which time she signed an arbitration agreement. Her complaint, which she filed in state court, alleged she had been subjected to sexual harassment prior to her termination from employment on Sept. 14, 2022, and that her termination was in retaliation for her sexual harassment complaints as well as in retaliation for reporting workplace injuries. The complaint also alleged wage discrimination.

Tesla removed the case to federal court and then moved to compel arbitration, or in the alternative, to sever the non-sexual harassment claims and send those to arbitration. First, as to any issue regarding the effective date of the Act, the court found that the adverse action of Turner’s termination occurred after the effective date and that, thus, the action within the Act’s temporal scope.

As to the issue of severance, the court addressed each of Turner’s claims and found the arbitration agreement unenforceable as to all because the core of her case alleged “conduct constituting a sexual harassment dispute” under the Act. Even with respect to the claim concerning wage discrimination and workplace injuries, the court held that they should not be severed because they were otherwise “inherently intertwined with the other causes of action such that it makes sense to have this claim proceed along the other causes of action.”[4]

In Johnson v Everyrealm, Inc.,[5] Johnson’s initial complaint alleged a number of causes of action arising out of his employment with the defendant, none of which asserted sexual harassment. After Everyrealm filed a motion to compel arbitration, Johnson was allowed to file an amended complaint, which included a number of allegations related to sexual harassment.

The court held that the amended complaint sufficiently pled facts giving rise to a cause of action for sexual harassment under Rule 12(b)(6). The court then addressed whether the arbitration agreement was unenforceable as to the sexual harassment claim only or if it was unenforceable as to the entire case. The court found the latter. The court acknowledged that under the FAA, “if a dispute presents multiple claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal litigation.”[6] However, the court observed that the Act made pre-dispute arbitration agreements unenforceable “with respect to a case which is filed under federal, tribal or state law and relates to the … sexual harassment dispute.”[7] The court held the traditional definition of “case” referred to the overall legal proceeding, not merely the discrete claims alleging sexual harassment. Thus, the court denied the motion to compel arbitration as to the entire case.

In Yost v. Everyrealm, Inc., 2023 WL 2224550 (S.D.N.Y. Feb. 24, 2023), decided by the same judge and on the same day as the Johnson case above, the court reached a different conclusion on different facts. After Yost filed an initial complaint and amended complaint, Everyrealm filed a motion to compel arbitration. Yost then filed a second amended complaint, adding claims for hostile work environment sexual harassment, to which Everyrealm filed a Rule 12(b)(6) motion to dismiss. Here, however, the court held that Yost’s allegations did not rise to the level of actionable sexual harassment.

Not surprisingly, the court then held that, since the Act pertains to conduct “alleged to constitute sexual harassment under applicable federal, tribal or state law,” it was inapplicable in this case, where the conduct failed to meet that standard. To find otherwise, the court stated, “would enable a plaintiff to evade a binding arbitration agreement — as to wholly distinct claims, and for the life of a litigation — by the expedient of adding facially unsustainable and quickly dismissed claims of sexual harassment.”[8]

In Mera v. SA Hospitality Group,[9] Mera signed an arbitration agreement upon commencement of his employment, and subsequently filed a complaint for sexual harassment based on his sexual orientation, as well as violations of the Fair Labor Standards Act and New York wage law on behalf of all non-exempt employees. In response to the defendant’s motion to compel arbitration, the court found the claim for sexual harassment clearly fell within the coverage of the Act, and the arbitration agreement was unenforceable as to that claim. However, the court held the wage claims were distinct and compelled arbitration as to those claims.

In Delo v. Paul Taylor Dance Foundation,[10] Delo signed an arbitration agreement at the commencement of her employment. After her termination, she filed suit alleging gender, caregiving and familial discrimination which related to the nursing and caring for her newborn while at work. In response to the defendant’s motion to compel arbitration, Delo asserted the agreement was unenforceable under the Act. The defendant argued that Delo did not style any of her claims as “sexual harassment” and that the conduct alleged did not otherwise amount to sexual harassment.

The court did not agree. The court found that Delo alleged a “hostile environment,” which is a recognized form of sexual harassment. As to the merits of the allegations, the court noted that under New York law, allegations of sexual harassment only need to show that the plaintiff has been treated less well than other employees because of her gender, based on unwanted “gender-based conduct.” Moreover, although the alleged wrongful conduct traversed the period before and after the effective date of the Act, the court found the post-March 3, 2022 actions sufficiently related to the earlier acts, and thus, the complaint fell within the purview of the Act.

More recently, and closer to home, in Jane Doe v. TriStar Concepts Inc. et al,[11] the Chancery Court for Davidson County applied the Act to enjoin a pending arbitration proceeding. There, the plaintiff was a party to an employment arbitration agreement with her employer, TriStar, which included confidentiality and non-disparagement provisions. After her termination, the plaintiff posted claims of sexual harassment by the principal of TriStar on social media. Tri-Star then commenced the arbitration proceeding for violation of the plaintiff’s contractual obligations. After the arbitrator denied the plaintiff’s motion to dismiss the arbitration (on grounds unrelated to the Act), the plaintiff filed this action for sexual harassment under the Tennessee Human Rights Act.[12] The court concluded that TriStar’s contractual claims “relate[d] to” the plaintiff’s alleged claims of sexual harassment, rendering the arbitration agreement invalid and unenforceable. The court further found the plaintiff had not waived her argument against arbitration by failing to raise it in the arbitration itself.[13]

Conclusion

The majority of courts have taken a broad view of what claims are “related” so as to invoke the Act. It is too early to see what course other cases will take, and if there will be appeals of these decisions[14] — but these examples provide a good basis for research by practitioners dealing with sexual harassment and “related” claims.

Mark Travis is an arbitrator focused exclusively on labor and employment disputes. He is a member of the National Academy of Arbitrators, a Fellow in the College of Labor and Employment Lawyers and serves as an adjunct professor of Arbitration at the University of Tennessee College of Law.            

If you are like me, you start your workday with a cup of coffee. Or maybe two. I drink my coffee black, but, to each their own. Maybe you, like many others, look forward to a frothy pumpkin spice latte in the fall. Some people grind their coffee beans each morning to achieve the perfect brew.  Others dash through the drive-thru at their favorite coffee shop during their morning commute. We are all different coffee people. But, no matter what kind of coffee person you are, chances are good that enjoying your favorite cup of Joe recently has also made you think of something else — labor unions. 

Starbucks stores across the state — from Knoxville to Memphis — are unionizing. Nashville has seen a series of specialty coffee shops close recently due to labor disputes. Labor unions are back in the news, and the coffee industry seems to be the public-facing example of the pitfalls of modern labor organizing and representation elections. 

Federal labor laws guarantee most workers in the U.S. the right to band together in the workplace to better the terms and conditions of their employment, including the right to come together to form a union. Employers, in turn, are prohibited from interfering with the exercise of those rights in certain ways. Labor lawyers talk about this framework in terms of Section 7 rights and Section 8 obligations under the National Labor Relations Act (NLRA). Representation elections are conducted, upon the employees’ petition, by the National Labor Relations Board (Board). With renewed interest in forming unions among American workers, the current Board finds itself grappling with how to protect Section 7 rights in the modern workplace and, importantly, how to remedy an employer’s unfair labor practices during an election. 

The Sixth Circuit’s recent McKinney v. Starbucks decision is a helpful example. Last year, employees at a Memphis Starbucks location wanted to unionize. So, they organized themselves, signed authorization cards, and petitioned the Board for an election. However, prior to the election, Starbucks fired seven of the store’s employees. The Board’s general counsel, as the enforcement agent for the Board, sought an injunction in federal court to reinstate the “Memphis Seven,” as the workers came to be known. The district court issued the requested injunction, and Starbucks appealed. On appeal, the Sixth Circuit grappled with the question of remedies for unfair labor practices in the context of representation elections.[i]    

How can the Board, and the courts, ensure “laboratory conditions” — the legal standard — when running an election? Reinstatement, as the court ordered in Starbucks, obviously puts the workers back into their jobs in time for the election. But how does a court remedy the psychological harm suffered by the employees in the bargaining unit, whether a chilling effect on the exercise of their statutory rights or an erosion of support for the union? Indeed, in the context of representation elections under the NLRA, traditional remedies, money damages in particular, are largely inadequate to address the harm done, where the harm is to a diminish the belief in a right, an ideal – the right to vote.[ii]  

The Board, for its part, has recently attempted to bring the more traditional remedies in labor law into the 21st century workplace. First, in Thryv, Inc., 372 NLRB No. 22 (2022), the Board expanded the types of remedies available to workers suffering an adverse employment action in violation of the act. Identifying the modern reality that, for example, many people maintain health insurance through an employer-sponsored plan, the Board allowed employees that lost coverage as the result of a wrongful termination to recover the costs of replacement coverage or out-of-pocket medical expenses.[iii] The Board catalogued a number of potential remedies for such workers, recognizing the need for the Board to “periodically update[] its make-whole relief to better effectuate the purposes of the Act.”[iv] Next, in Noah’s Ark Processors, 372 NLRB No. 80 (2023), the Board addressed remedies to cure the more intangible harms coming from unfair labor practices, such as loss of support for a union, erosion of bargaining power, or a chilling effect on the exercise of Section 7 rights. Terming them “special” remedies, the Board suggested, for example, an "explanation of rights" poster, a reading of the poster or other notice by the company CEO or other senior official, dissemination of notices and explanations of rights by mail and email, periodic site visits by Board employees, and trainings for the employer’s supervisors and other managers.

Finally, in late August the Board issued its decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), which stands to dramatically alter the landscape of representation elections not how they are conducted, but whether they are conducted at all. Of course, nothing in the NLRA requires an election for a union to be certified. Rather, the NLRA permits employees to choose to be represented by a union, or not be represented, by “designation” or “selection.”[v]  An election is one form of selection. But employees can designate their chosen union representative in other ways, for example by signing authorization cards. An election is, in a sense, a remedy provided by statute to an employer that has reason to doubt that a majority of its employees truly support unionization. Since the early 1970s, the Board has favored elections as a means of ascertaining majority support, so much so that elections are now standard practice in labor law. In Cemex, however, the Board adopted a new standard that encourages employers to recognize and bargain with its employees’ designated representative without the need for an election. “We conclude that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union’s majority support and/or challenge the appropriateness of the unit . . .”[vi] In other words, Cemex moves the burden of filing an election petition off of the employees and places it on the employer when the employer is faced with evidence of majority support for the union by designation.

Of course, how Cemex impacts workplace organizing in practice is anyone’s guess. For now, all we lawyers can do is grab our favorite cup of coffee and wait to see.

Karla Campbell practices employment law, in particular ERISA, and traditional labor law at Stranch Jennings & Garvey in Nashville. She is a long-time member of the AFL-CIO’s Union Lawyers’ Alliance and a frequent speaker on labor law topics.  Before attending law school, Campbell served in the U.S. Peace Corps in Ecuador.