In August 2023, the NLRB’s then-Democratic majority issued its decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), fundamentally altering the framework for union recognition and employer obligations when confronted with a union’s demand for bargaining.
Before the decision in Cemex, an employer could generally deny or ignore a request for recognition by a union. The union would then have the option of filing a petition for election. This would kickstart a formal election process, during which the Board would assess the appropriateness of the unit, among other issues, and then decide whether to order an election. The parties also could negotiate an election agreement. If an election occurred, eligible voters could cast their ballot anonymously. Under this historic framework, the onus was on the union to file the petition and to establish at least 30% support from an appropriate bargaining unit.
In Cemex, the Board overruled a 1971 case called Linden Lumber, which had long formed the basis of an employer’s right to decline or ignore demands for recognition without consequence. Under Linden Lumber, the Board’s position was that an employer did not violate the Act solely by refusing to accept evidence of majority status other than the results of a Board election. The Supreme Court upheld Linden Lumber in 1974.
Cemex created a new paradigm, whereby a union that obtains signed authorization cards from a majority of employees in an appropriate bargaining unit can present the employer with a demand for recognition. The employer then has two options: voluntarily recognize the union or promptly file an RM petition within two weeks to test the union’s majority status through a secret-ballot election. If the employer does neither, the Board will find that the employer violated Section 8(a)(5) of the Act and will issue a remedial bargaining order. Additionally, Cemex lowered the threshold for issuing bargaining orders when an employer commits unfair labor practices that frustrate a free, fair, and timely election — making bargaining orders the default remedy in such situations rather than simply directing a rerun election.
Anecdotally, many unions still decided to go the route of filing an RC petition, as the two-week RM petition deadline gave employers some additional time to campaign. However, it did mean that unions held more leverage with respect to implementing their organizing strategies. It also meant that employers who were not up-to-date on the new Cemex rules could fall into a trap of mandatory recognition; lack of knowledge of this monumental shift in the rules was not going to be an excuse.
Is Change On the Horizon?
On June 22, 2026, an ALJ issued the first decision applying the Cemex recognition-demand framework to find an unfair labor practice based solely on an employer’s failure to recognize a union or file an RM petition. The case involved one of Amazon’s facilities in California.
In 2024, the Teamsters union had allegedly collected signed authorization cards from about 66% of a group of sorting associates. The employees demanded recognition in October 2024. Amazon did not respond. The Teamsters sent a follow-up communication expressly mentioning Cemex. Amazon did not respond to that either, and did not file an RM petition.
Based on the holding in Cemex, and effectively stating that his hands were tied, the ALJ found that the employer violated Section 8(a)(5) of the Act because: (1) the Union had majority support in an appropriate unit, (2) it demanded recognition, and (3) Amazon neither recognized the union nor filed a petition.
The ALJ acknowledged that Amazon raised “salient” arguments challenging Cemex — including arguments that the new rules conflicted with Supreme Court precedent, violated the Administrative Procedure Act, and implicated the Major Questions and Non-Delegation Doctrines. However, because he was bound to follow extant Board precedent, the ALJ issued a bargaining order requiring Amazon to recognize and bargain with the Teamsters as of the date of the first request for recognition.
Amazon most certainly will appeal this decision to the Board.
Separately, addressing the other part of Cemex, the Sixth Circuit recently rejected the default bargaining-order standard. In Brown-Forman Corp. v. NLRB (March 6, 2026), the court held that the Board exceeded its adjudicatory authority in promulgating the Cemex remedial bargaining standard because it was “neither derived from the case-specific facts nor in furtherance of fashioning a remedy that resolved the parties’ dispute”. Although that holding is currently binding only in the Sixth Circuit, it signals judicial skepticism that may embolden the Board to act.
Perfect Timing for NLRB Review?
The Board currently has a 2-1 Republican majority. With three members, it has a functioning quorum, though both Republican appointees have indicated that they will not shift major precedent without at least three affirmative votes (as is tradition).
Accordingly, with only a 2-1 majority, the Board has thus far declined to overturn major Biden-era precedents. That said, the path to a full reversal for Cemex now appears close at hand. On April 13, 2026, President Trump nominated James Macy to fill the vacant third Republican seat and paired it with a renomination of Democrat David Prouty. If confirmed, the Board would have a three-member Republican majority with the votes needed to overturn Biden-era precedents. By pairing these two nominees together, confirmation is expected to go smoothly, and is likely to occur within the next several weeks.
It may take some time (perhaps more than a year) for the Board to address this specific Amazon appeal. Until then, Cemex still technically controls.
If the Board overturns Cemex, the most likely outcome is a return to the Linden Lumber standard, under which employers could reject card-based demands for recognition and insist that unions seek a secret-ballot election. Employers would no longer face a two-week deadline to file an RM petition after receiving a recognition demand.
If the Board also chooses to use this case as a vessel to overturn other aspects of Cemex, bargaining orders would likely return to the more limited Gissel standard — available only where employer misconduct is so serious as to undermine the possibility of a fair election.
However, the current uncertainty demands that employers remain cautious. Until Cemex is formally overturned, it remains binding law, and the NLRB continues to apply it. Employers outside the Sixth Circuit remain fully exposed to bargaining orders under the existing standard.
Anticipating a shift in the tides, unions will likely preemptively turn back to filing election petitions as the primary way to seek recognition. However, to the extent a union attempts to further utilize the Cemex recognition standard while it remains precedent, an employer caught in the middle of this will need to make a strategic choice: file an RM petition or wait things out in the hope that Cemex will be overturned.
Regardless, employers need to remain vigilant to underground union organizing campaigns. More and more, unions are organizing digitally and through social media, secretly collecting electronic authorization cards. Many employers are shocked when they receive the demand or petition, as they did not see it coming. An informed management team is the key to combatting these tactics, and there is no time like the present to educate front-line supervisors about the signs and risks of unionization.
We will continue to monitor the status of the Cemex standards and related developments. Follow and subscribe for timely updates as Board precedent evolves.