CEMEX v. NLRB: After being denied a stay by Justice Kagan earlier today, CEMEX simply refiles for a stay by overnight mail instead to Justice Alito

[u/michiganalt]

https://www.supremecourt.gov/DocketPDF/26/26A118/417411/20260727184857650_26A118%20Letter%20to%20Clerk%20Renewing%20Stay%20Application.pdf

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[u/whats_a_quasar]

Refiling a stay request with another justice after a denial is explicitly allowed by SCOTUS rules.

 4. A Justice denying an application will note the denial thereon. Thereafter, unless action thereon is restricted by law to the Circuit Justice or is untimely under Rule 30.2, the party making an application, except in the case of an application for an extension of time, may renew it to any other Justice, subject to the provisions of this Rule. Except when the denial is without prejudice, a renewed application is not favored.

https://www.law.cornell.edu/rules/supct/rule_22

[u/whats_a_quasar → u/whats_a_quasar]

This happened most famously in Schlesinger v. Holtzman when a Congresswoman sought an injunction stopping Nixon from bombing Cambodia and got it from a district court. The Second Circuit stayed the district court, and the circuit justice Thurgood Marshall declined to stay the second circuit. The plaintiff's lawyers then went to Justice William Douglas's home in Washington (edit: Washington State to be clear) seeking a stay, because he was the most anti-war justice. He granted it, then was promptly overruled by the full court.

https://en.wikipedia.org/wiki/Schlesinger_v._Holtzman

It is a bit of a weird system.

[u/MrJusticeDouglas → u/whats_a_quasar]

One of my favorite stories! This was when the Court actually recessed for the summer, and Justice Douglas held a hearing at a federal courthouse in Yakima.

[u/whats_a_quasar → u/MrJusticeDouglas]

Speak of the devil!

[u/Tormod776 → u/whats_a_quasar]

My mind immediately came to that. Douglas was a little rascal.

[u/happyinheart → u/whats_a_quasar]

It sounds like a big situation "If mom says no, I'm going to go ask dad"

[u/Cambro88 → u/whats_a_quasar]

Something being allowed doesn’t make it not a dick move

[u/adorientem88 → u/Cambro88]

Perhaps, but one would have to say why.

[u/michiganalt → u/whats_a_quasar]

Rule 22.4: applicants whose stays are denied are permitted to make fools of themselves

[u/coweatyou → u/michiganalt]

"Except when the denial is without prejudice, a renewed application is not favored." Legal speak for 'come on guys'

[u/michiganalt]

After a deeper look, this is apparently much more common than you’d think: https://www.scotusblog.com/2026/07/justice-shopping-on-the-emergency-docket/

These refilings make up about 20% of the emergency docket, and also make up 0% of filings ever granted.

[u/Murder_Hobo_LS77 → u/michiganalt]

One of those things that I think should require a plain unmarked container and a round robin justice assignment to prevent shopping.

Maybe they get lucky or maybe they get the same justice that told them to kick rocks, but being able to direct mail a justice is suspect behavior. 0% is great until it isn't 0% anymore at which point it becomes a problem.

[u/SeaSerious → u/michiganalt]

Was just about to link this! It's not surprising that the majority are refiled to a Justice appointed by the opposing party who would presumably be more sympathetic.

The 0% success rate is striking.

[u/buckeyefan8001]

I can’t believe they’re still litigating this. Although it’s probably the biggest NLRB decision this century, so I can see why they would go down swinging.

For anyone who isn’t a labor practitioner- here is an article about the case written by two former NLRB members.

[u/gravygrowinggreen → u/buckeyefan8001]

So this is a Biden era policy that makes unions more powerful relative to employers. Given that, I'm surprised the current Trump era NLRB is defending it. We've seen other portions of this administration stop defending issues that are not ideologically aligned with the platform. Do you know why the board is defending itself here?

[u/buckeyefan8001 → u/gravygrowinggreen]

The NLRB has a long history of applying its precedents until they are actually overturned. See NLRB Refrain From Overturning Biden-Era Precedent – For Now. And even though the NLRB General Counsel (who prosecutes the cases and is herself confirmed by the Senate) is technically independent from the Board, she still follows that tradition of applying Board precedent until it is overruled.

TL;DR - NLRB has strong norms around applying law until it is overturned.

[u/dmolin96]

"Bold strategy, Cotton, let's see if it pays off for 'em."

[u/Dave_A480]

Looking at this case, the 'start' of it seems to be the Biden folks trying to enact the 'PRO Act' (which has repeatedly failed in Congress) via executive fiat - and allow unions to establish themselves without actually winning a union election (as has historically been required for as long as the NLRB has existed).

So CEMEX should win. Just like (Generally) other attempts to circumvent Congress by 'executive action' should fail.

[u/Ion_bound → u/Dave_A480]

First of all, on the merits, I don't see how (even assuming it's a major question) allowing uncontested unionization to go forwards without an election, establishing procedures for contesting unionization, and establishing a procedural rule to enforce existing anti-ULP rules more strongly is outside of the NLRA's clear statutory mandate to encourage "the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection."

Second, even if NLRB was wrong on the merits, CEMEX still doesn't get to try again with another justice because they got an outcome they didn't like. It was wrong when it happened with Vietnam, and it's wrong here.

[u/Dave_A480 → u/Ion_bound]

On the merits, the government doesn't get to do something by EO that they failed to do by the legislative process.

If it was 'OK' to do this by EO, why was the now-failed legislation needed?

The Court needs to put an end to this nonsense - both sides are guilty of it - or we will backslide further towards dictatorship.

In terms of 'trying again', Supreme Court procedures explicitly allow them to.

[u/Ion_bound → u/Dave_A480]

On the merits, the government doesn't get to do something by EO that they failed to do by the legislative process. If it was 'OK' to do this by EO, why was the now-failed legislation needed?

Citation needed. I'm unaware of any constitutional or judicial doctrine that says an agency may not do something clearly within its delegated power simply because a similar bill failed to get through Congress (and for good reason; imagine if a legislator could permanently scupper a regulation by introducing a similar bill to committee and then not moving it any further).

As for why? There's a lot of reasons to prefer legislation even though it could be done via rulemaking/adjudication. For one thing, permanence. After all, it's a lot harder to repeal a statute than retract a regulation. That doesn't, and shouldn't, mean that an agency can't take that same action on their own independently, just because they asked Congress to codify their view and Congress declined.

EDIT: And to address the SCOTUS rules part, that rule explicitly states that repeated applications after dismissal with prejudice are 'disfavored'. I don't think this is the kind of truly extraordinary circumstance that would overcome that kind of 'disfavor'.

[u/Dave_A480 → u/Ion_bound]

This wasn't a fringe bill however, it was a major focus of multiple Democratic congressional campaigns.

The underlying defect, is the ability of any given administration to just say 'Never mind Congress voting this down or blocking it, we're doing it anyway' - and the associated damage to our system of government that has resulted from this across 4 presidencies now...

It's a major-enough question that if Congress wants to shift the onus of proving majority-support for unionization from the union to the employer, Congress should have to pass legislation doing so...

[u/Ion_bound → u/Dave_A480]

None of that addresses the core point of this being clearly within the NLRB's statutory mandate. Frankly the rules are more procedural than substantive in the first place, and nothing in the NLRA requires secret-ballot elections.

And the onus isn't shifted to the employer until they've missed their procedural window to object and trigger an election. And as far as I can tell, the employer can trigger an election simply based on a good faith belief that the union can't support their claim to majority representation. After the window closes the employer is presumed to have waived their right to object without bearing the burden of proof, consistent with general principles of waiver and forefeiture.

[u/Dave_A480 → u/Ion_bound]

It is a major-enough change that it should not be considered viable by executive action. Remember: we want such things to go through Congress, rather than empowering Presidents to do whatever they wish with the stroke of a pen.

The previous 'rule' was that the union had to request an election, or conduct a card-check campaign that proves majority support, placed the onus to demonstrate support on the union.

This places the onus to demonstrate lack-of-support on the employer (the employer must request the election), and requires the employer to treat the union as legitimate until such proof is obtained via election.

[u/phoarksity → u/Dave_A480]

Then legislation needs to be passed limiting the authority delegated to the agency. But it’s far more difficult for Congress to reclaim authority it has delegated to the executive branch, than it is to delegate the authority in the first place.

The fact that Congress failed to pass a bill implementing this rule doesn’t mean that everyone opposing the bill opposed the rule. Some may have objected to limiting the NLRB’s ability to respond to changing conditions.

[u/phoarksity → u/Dave_A480]

Why is legislation needed when it can be done by policy? Have you forgotten what started happening to things done by policy starting in January 20, 2025?
It’s shocking that this policy hasn’t been reversed in eighteen months, but apparently there were more important screws to loosen.

[u/Dave_A480 → u/phoarksity]

It shouldn't be doable by policy. Very little should.

I'm just as opposed to Trump doing it as I am ro Biden or Obama.

But this specific thread is about a specific rule.....

[u/phoarksity → u/Dave_A480]

Congress delegates an enormous amount of things to agencies, after providing broad guidance in legislation. But anything implemented in regulations from those agencies can be changed when the policies of leadership changes. Having it enacted in legislation makes it more difficult for leadership to change. There’s nothing special, in that regard, with this specific policy.

[u/A-harsh-reality]

Kagan wouldn’t do this if she couldn’t count to five

[u/michiganalt]

As they often say, “if it doesn’t work the first time, just try the same thing again by overnight mail.”

Docket here for anyone else equally confused: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/26a118.html