Union Elections – Concerted Action – The Duane Morris Labor Blog

June 24, 2026June 24, 2026 by Elizabeth Mincer

The Cemex Rules May Be Coming to an End, as Amazon Openly Challenges Current Election Requirements

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.

April 6, 2026April 6, 2026 by Elizabeth Mincer

Union Election Petition at Shipping Company Dismissed After NLRB Region Finds Supervisory Status

By Elizabeth Mincer

On March 31, 2026, Region 21’s Regional Director dismissed an election petition for a proposed unit of workers at a shipping facility, finding that they were all supervisors. See American President Lines, LLC, 21-RC-337981 (Mar. 31, 2026). The decision offers a detailed example for transportation and logistics employers seeking to understand how the NLRB evaluates supervisory status under Section 2(11) of the NLRA, and it provides practical lessons on how to structure frontline supervisory roles to withstand legal scrutiny.

Background

The employer operates an international shipping network. The clerks at its Long Beach facility were already represented by the Longshoremen’s union. The petitioned-for unit consisted of four classifications: a Detention Demurrage Storage and Monitoring Manager (“DDSMM”), a Regional Collections Manager (“RCM”), four Cargo Flow Supervisors (“CFSs”), and two Cargo Flow Managers (“CFMs”). These eight individuals served as the immediate supervisors of the clerks.

The employer contended that the petitioned-for unit was improper because each of the individuals was a statutory supervisor excluded from the Act’s protections. The hearing lasted 13 days, and the matter itself was left pending for almost two years while the Regional Director assessed the evidence.

Supervisory Status and Section 2(11)

Section 2(11) of the NLRA defines a “supervisor” as any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, provided the exercise of such authority is not merely routine or clerical in nature but requires the use of independent judgment. As the Board explained in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), the party asserting supervisory status must demonstrate that the individual (1) possesses authority over at least one of the twelve enumerated supervisory functions, (2) exercises that authority with independent judgment rather than in a merely routine or clerical fashion, and (3) does so in the interest of the employer. In almost all situations, the employer bears the burden of proof. Purely conclusory evidence is insufficient.

Regional Director’s Analysis

Assignment of Work

The Regional Director found that the employer did not present sufficient evidence to establish that the supervisors had authority to “assign” work within the meaning of Section 2(11). Under Oakwood, “assignment” involves designating an employee to a place, appointing an employee to a time, or giving significant overall duties to an employee. Here, the clerks’ overall duties were determined by their respective job descriptions set forth in the collective bargaining agreement, and the clerks generally performed the same types of tasks each day without requiring detailed instructions from their supervisors. When supervisors directed clerks to perform specific tasks — such as handling an urgent customer dispute, following up on an overdue account, or sending transport orders to truckers — those amounted to discrete task assignments rather than the significant overall designation of duties contemplated by the statute.

Responsible Direction of Work

By contrast, the Regional Director did find that the supervisors “responsibly direct” the work of clerks, exercising independent judgment in doing so. This finding turned on the concept of accountability: unlike mere assignment, responsible direction requires proof that the supervisor is accountable for the proper performance of tasks by subordinate employees.

There was significant evidence supporting this factor, as each supervisor oversaw a team of four to eleven clerks and provided daily oversight to ensure tasks were completed timely and correctly. Examples included: (1) preparing priority dispute reports and directing how the dispute should be handled; (2) establishing deadlines for collectors to follow up on overdue accounts and having authority to approve sending accounts to third-party collections; (3) managing excessive storage fees and taking action to reduce costs; and (4) having aspects of their performance metrics based on the performance of their subordinates.

The performance evaluation piece was key. The supervisors could face positive or negative consequences based on the performance of their clerks. And, their performance evaluations served as the basis for merit-pay increases and promotions. Thus, the supervisors were held accountable for how the employee clerks performed.

Adjustment of Grievances

The Regional Director also found that the supervisors had authority to adjust grievances (i.e., to resolve workplace complaints beyond minor disputes and to use independent judgment in doing so).

In this case the clerks were in a union. While, as a legal matter, subordinate employees do not have to be in a union for this factor to apply, here, the Regional Director found that the direct supervisors had authority to address certain contractual grievances pursuant to the CBA’s grievance procedures.

Specifically, the first step of the CBA’s grievance procedure required certain disputes to be discussed with the employee’s immediate supervisor, and the supervisors at issue here served in that capacity. The Regional Director found that adjudicating these disputes required the exercise of independent judgment because certain CBA provisions could be vague and the supervisors were tasked with interpreting their meaning and weighing multiple factors to assess whether the grievance had any merit.

Effective Recommendation of Hiring

The Regional Director also found that the supervisors effectively recommended the hiring of ten new clerks earlier that year. The supervisors served as the sole interview panel, were supplied with candidates’ resumes and rating sheets, conducted the interviews, completed written evaluations, and provided the recommendations, which the company adopted. Record evidence also showed that supervisors had interviewed and recommended candidates for hire on at least one prior occasion, in 2021.

Secondary Indicia

Finally, the Regional Director further found that secondary indicia supported the conclusion of supervisory status.

Secondary indicia are factors other than those enumerated in Section 2(11) of the Act. Secondary indicia, standing alone, are insufficient to establish supervisory status. But, they can help tip the scales. Secondary indicia of supervisory status include, but are not limited to, the individual’s: designation as a supervisor; attendance at supervisory meetings; receipt of management memos; responsibility for a shift or phase of the employer’s operation; authority to grant time off to other employees; responsibility for inspecting the work of others; responsibility for reporting rule infractions; receipt of privileges exclusive to members of management; and compensation at a rate higher than the employees supervised.

Here, the Regional Director found evidence that clerks viewed the supervisors as their supervisors; that the supervisors attended supervisory meetings; that they managed time-off requests and team attendance; that they inspected clerks’ work for errors; and that they had authority to request temporary employees from the hiring hall.

Confidential and Managerial Status

Separately, the Regional Director declined to find the DDSMM and RCM were confidential employees, concluding that the record was insufficient to show they had regular access to advance information regarding the employer’s bargaining strategy. Similarly, the Regional Director rejected the employer’s argument that the CFMs were managerial employees, finding that the CFMs did not formulate employer policy but merely implemented strategies to ensure timely completion of team work.

Key Takeaways for Employers

A key issue for employers in any union organizational campaign is the identification of supervisors and higher-level managers, as these individuals are not covered by the Act and should be excluded from any bargaining unit. When it comes to the frontline, direct supervisors, the line-drawing can be difficult, as there is often overlap in the performance of tasks. But, it is an important line to draw.

Employers need to think about this issue now; waiting until a union issues a demand for recognition or files an election petition to figure out if a worker is a supervisor or an employee puts an employer on the back foot. Under current election rules, an employer may have as little as one week to put together its positions and prepare for a hearing. The more clear-cut an employee’s supervisory status is, the less likely that supervisor is to be swept up in a union organizing petition (and if they are, the more likely that the employer can establish sufficient evidence to properly exclude them from the unit).

Things to consider:

Are direct supervisors held responsible for the work of their subordinates? What evidence is there of this responsibility?
Do the direct supervisors exercise independent discretion in making decisions? Is this clearly encapsulated by their job description? How is such decision-making documented?
Do employees understand that the individual directly above them is their supervisor? Do supervisors attend separate management meetings? In what ways are the supervisors treated differently from the employees they oversee?

Conclusion

This decision is a relatively thorough application of the Board’s Oakwood Healthcare framework and a reminder that supervisory status under Section 2(11) must be grounded in concrete, specific evidence rather than conclusory assertions.

For employers in the transportation and logistics sector, the case underscores the importance of building a deliberate supervisory infrastructure — one in which direct supervisors have authority to exercise independent discretion with such authority clearly documented. Employers who proactively structure and document these supervisory functions will be better positioned to defend the exclusion of their supervisors from bargaining units if challenged.

Note: At the time of publishing, this Regional Director decision had not been formally adopted by the Board.

This Blog Post has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship. Please consult qualified labor and employment counsel for guidance specific to your situation.

March 26, 2026March 27, 2026 by Adam Keating

NLRB Clarifies That Cemex Framework Does Not Impose a Filing Deadline for RM Petitions

By Adam Keating

In a decision issued on March 25, 2026, the National Labor Relations Board provided important guidance on the scope of its 2023 Cemex Construction Materials Pacific LLC decision, holding that the framework established in that case does not create an enforceable deadline for employers to file petitions for representation elections. The ruling, issued in St. John’s College, Case 28-RM-337949, offers welcome clarity on an issue that has generated significant uncertainty among employers since Cemex was decided.

Background: The Cemex Framework

As many employers are now aware, the Board’s 2023 Cemex decision marked a significant shift in labor law by establishing a new framework governing employer responses to union demands for recognition. Under Cemex, when a union presents an employer with a demand for recognition supported by evidence of majority support among the relevant workforce, the employer has two options: voluntarily recognize the union, or “promptly” file a petition for an election — referred to as an RM petition in Board parlance. If the employer fails to act promptly, or if it commits unfair labor practices that undermine the election process, the Board may impose a bargaining order requiring the employer to recognize and bargain with the union without an election.

The Cemex decision indicated that “promptly” would ordinarily mean within approximately two weeks of the union’s recognition demand. Since its issuance, the decision has led to a notable increase in employer-filed RM petitions, as employers have sought to avail themselves of the election option rather than accede to voluntary recognition.

One significant area of ambiguity, however, has been whether the two-week guideline constituted a hard-and-fast filing deadline — and, if so, what consequences would attach to a late filing at the representation case stage.

The St. John’s College Decision

The St. John’s College case presented this question directly. The matter arose when the Communications Workers of America demanded recognition as the representative of a unit of graduate and undergraduate workers at St. John’s College. The college subsequently filed an RM petition, but a regional director dismissed the petition on the ground that it had not been filed within the timeframe contemplated by Cemex.

The Board reversed the regional director’s dismissal. In doing so, the Board held that Cemex did not modify the existing procedural rules governing the processing of representation petitions. Regional directors, the Board explained, should evaluate and process RM petitions under the established representation case procedures, without applying Cemex‘s timeliness language as a basis for dismissal.

The Board drew a clear distinction between the representation case process and the unfair labor practice process. As the Board stated, “The question of whether, within the meaning of Cemex, an RM petition was ‘promptly’ filed or whether ‘unforeseen circumstances’ excuse a later filing are properly left to unfair labor practice proceedings.” In other words, the timeliness of an employer’s RM petition filing is relevant only in the context of a subsequent unfair labor practice proceeding — not as a threshold barrier to the petition being processed.

Key Takeaways for Employers

This decision carries several practical implications for employers navigating the Cemex landscape.

First, employers should understand that an RM petition will not be dismissed at the representation case stage solely because it was filed outside the approximate two-week window referenced in Cemex. Regional directors will process such petitions under the Board’s standard procedures.

Second, however, employers should not interpret this ruling as eliminating the importance of acting promptly. The timeliness of an RM petition filing remains a relevant consideration in unfair labor practice proceedings. An employer that delays filing may still face exposure to a Cemex bargaining order if the Board later determines, in an unfair labor practice case, that the petition was not filed promptly and the employer engaged in conduct that undermined the election process.

Third, the decision underscores the importance of having a well-prepared response plan in place before a union demand for recognition arrives. Employers that are prepared to act quickly when confronted with a recognition demand will be best positioned to preserve their right to an election while minimizing the risk of a Cemex bargaining order.

We will continue to monitor developments in this area as the Board and the courts further refine the contours of the Cemex framework. Employers with questions about how these developments may affect their operations should consult with experienced labor counsel.