NLRB Bargaining Orders: Three Developments Impacting the Cemex Decision

March 31, 2026

By: Thomas G. Eron and Samuel P. Wiles

The National Labor Relations Board’s decision in Cemex Construction Materials Pacific, 372 NLRB No. 130 (2023) was a paradigm shift in the law impacting employers when faced with a union’s demand for recognition as the bargaining representative of its employees. Three recent holdings address the viability and scope of that seminal decision.

Briefly restated, and as we have previously discussed (NLRB Further Erodes Employer Rights and Promotes Unionization), the Board’s decision in Cemex established a new liberal standard for issuance of a bargaining order remedy against an employer that refused to recognize a union, upon request, as the bargaining representative, if in fact the union had majority support, even in the absence of a union election. The Cemex Board also held that the employer could defend against this outcome by filing its own election petition (RM petition) to test the union’s majority status within 14 days of the union’s demand for recognition.

On March 6, 2026, the Sixth Circuit Court of Appeals ruled that the NLRB exceeded its authority in promulgating the Cemex standard. In Brown-Forman Corp. v. NLRB, the Court refused to enforce a Board order, holding that Cemex was “an unexpected, unlawful turn” that “was neither derived from the case-specific facts nor in furtherance of fashioning a remedy that resolved the parties’ dispute.” In effect, the Cemex standard was an unlawful exercise of rulemaking in the context of an adjudicatory proceeding.

While this decision is not a national precedent, it does represent a significant challenge to the viability of Cemex and may serve as the basis for other appellate courts to reject Cemex or perhaps serve as a vehicle for U.S. Supreme Court review.

In a related development, the NLRB in St. John’s College clarified the holding in Cemex by confirming that the 14-day timeframe for filing an RM petition does not limit an employer’s ability to file an RM petition after the 14 days have expired. There, the union presented the employer with a demand for recognition on December 14, 2023. Three months later, on March 13, 2024, the employer filed an RM petition. The Regional Director, however, dismissed the RM petition on the grounds that it was not “promptly filed” pursuant to Cemex.

In reversing the Regional Director’s dismissal of the RM petition, the Board clarified that Cemex’s “timeliness requirements pertain only to when the filing of an RM petition may shield an employer from potential unfair labor practice liability under” Cemex, and that Cemex should “not be construed to require” dismissal of otherwise properly filed RM petitions. Cemex creates the potential for unfair labor practice liability for an employer that rejects a union’s demand for recognition which can be countered by a “promptly filed” RM petition. However, the Board ruled that an employer may file an RM petition even after the 14-day window and that petition will be processed, potentially leading to an election to decide the union’s status.

Significantly, the Board did not address the issue of whether an unfair labor practice charge alleging a refusal to recognize and bargain with the union could be used to block an RM petition filed outside of the 14-day defensive window recognized in Cemex.

Finally, the potential for a bargaining order remedy under Cemex remains current Board law. In St. John’s College, the NLRB declined to rule on the employer’s argument that Cemex should be overruled. Further, in Lodi Volunteer Ambulance Rescue Squad, another recent decision involving the Thryv remedy standard, the current Republican majority of the Board (Members Murphy and Mayer) agreed to apply Biden-era precedent in the absence of a three-member majority to overrule it. That result suggests that the Board is unlikely to revisit the Cemex decision any time soon because, as currently constituted, the NLRB has only three members and its traditional practice has been to require three members to overturn a precedent. (Member Prouty, who voted with the majority in Cemex, is not expected to vote to overturn that decision.)

While these decisions are positive steps toward limiting Cemex, employers should be attentive and seek professional advice promptly when presented with a union’s demand for recognition. There remains a clear and present risk of unfair labor practice liability and a bargaining order remedy.

If you have any questions about the information presented here, please contact Thomas Eron, Samuel Wiles or any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.