Next month marks the second anniversary of a controversial National Labor Relations Board (NLRB) decision that overruled decades-old precedent and made it easier for unions to organize but harder for employers to counter unionization. The 2023 Cemex decision has been seen by some as the Biden-era NLRB’s effort to pressure employers to voluntarily recognize unions and to open more opportunities for unions to “win” representation rights even after losing elections. While many employers are hoping that Cemex will be among the rulings rolled back by the current NLRB, it remains on the books for now – so you should ensure you are familiar with its contours. What does your business need to know about how this controversial decision is being applied by the NLRB’s Administrative Law Judges?

Recap: What is Cemex?

As we’ve previously discussed, the Board’s 2023 Cemex decision created a new framework applicable when a union requests to be recognized as the collective bargaining representative of a specified employee group.

No longer could employers simply refuse to recognize the union while assuring their employees of the opportunity for a secret ballot election. Rather, they now have three options:

• Concede: Recognize the union as exclusive bargaining representative based on a claim of majority status (usually based on signed authorization cards which employers do not have an opportunity to independently review).
• Challenge: Promptly file (within two weeks of the recognition...

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