The National Labor Relations Board’s 2023 decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (Aug. 25, 2023), significantly altered the union-recognition landscape by making it easier for the Board to impose bargaining orders after alleged employer misconduct during organizing campaigns, departing from the more demanding framework that had previously governed for more than 50 years. Recent decisions from the Sixth and Ninth Circuit Courts of Appeals have now put Cemex squarely in the spotlight—rejecting it in one case, sidestepping it in another, and leaving employers nationwide with continued uncertainty over how to navigate an unsettled union-election landscape.
The NLRB’s 2023 decision in Cemex changed the standards governing union recognition by giving the Board a more aggressive path to impose bargaining orders after alleged employer misconduct during organizing campaigns. Before Cemex, the Board’s authority to issue remedial bargaining orders was governed by the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Under that standard, the remedy was available only where (1) the union had demonstrated majority support, and (2) the employer’s misconduct was so serious that traditional remedies, such as a rerun election, were unlikely to protect employee free choice.
Under Cemex, when a union claims majority support and demands recognition, the employer generally must either recognize the union...
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