What the NLRB’s Cemex Decision Means for Card Check, RM Petitions, and Bargaining Orders
The NLRB Cemex decision has changed the ground rules for union organizing in New Jersey, New York, and across the country. Under this new framework, employers who ignore a majority card check and then commit unfair labor practices during an election campaign are far more likely to be hit with a bargaining order and forced to recognize the union.
For unions and workers, that means we now have more leverage at the moment of majority support, and more tools when employers try to drag their feet or poison the campaign.
In this post, we break down what the NLRB Cemex decision actually says, how the General Counsel’s guidance fills in the details, and what practical steps New Jersey and New York unions should take right now on card check demands, RM petitions, and documentation of employer misconduct.
A Quick Refresher: What Did The NLRB Cemex Decision Do?
In August 2023, the National Labor Relations Board issued its decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130. The Board overruled its older precedent in Linden Lumber and announced a new framework for when an employer must recognize and bargain with a union that shows majority support.
According to the Board’s own summary, the new framework works like this:
- When a union requests recognition from an employer on the basis of a majority showing of support in an appropriate unit,
- The employer must either voluntarily recognize and bargain with the union, or
- Promptly file an RM petition with the NLRB asking for a representation election.
If the employer simply refuses recognition and does not file an RM petition, that refusal is an unfair labor practice under Section 8(a)(5), and the Board can issue a bargaining order based on the union’s card majority.
If the employer does file an RM petition and an election is held, Cemex changes the remedy when the employer commits unfair labor practices:
- If the employer commits any unfair labor practice that would normally require setting aside an election, the Board will dismiss the petition and issue a bargaining order requiring the employer to recognize and bargain with the union. There is no rerun election.
The Board described this as a way to better protect employees’ free choice and to discourage employers from using unlawful tactics to defeat a union campaign.
In short, the NLRB Cemex decision:
- Puts the burden on the employer, not the union, to trigger an election
- Raises the stakes on employer misconduct during campaigns
- Makes bargaining orders more accessible when the union has already shown majority support
The General Counsel’s Cemex Guidance: Even “Small” Violations Can Matter
The Board’s decision left many questions about how Cemex would work in practice, so the NLRB General Counsel issued a detailed guidance memorandum, GC 24 01, most recently revised in April 2024.
That memo and subsequent management side summaries highlight several important points:
- Employers generally have 14 days from a union’s demand for recognition to file an RM petition. This tight timeline is repeatedly emphasized in practitioner commentary and GC guidance.
- The General Counsel instructs regional offices to seek bargaining orders as the preferred remedy when an employer commits unfair labor practices that would normally warrant setting aside an election.
- The memo states that even a single “less serious” violation can justify a bargaining order if it undermines the laboratory conditions needed for a fair election.
Examples of employer conduct that can trigger a bargaining order after Cemex include:
- Discharging or disciplining key union supporters
- Threatening loss of benefits or plant closure if workers support the union
- Coercive interrogation or surveillance of employees’ union activity
- Unilateral changes in terms and conditions that interfere with organizing
In other words, the NLRB Cemex decision does not just punish the most extreme anti-union campaigns. It gives the General Counsel a roadmap for turning many common unfair labor practices into grounds for mandatory bargaining.
Why Cemex Matters For Union Organizing In New Jersey And New York
For unions organizing in New Jersey and New York, Cemex is not an abstract doctrinal shift. It changes the day-to-day calculus of campaign strategy in concrete ways.
1. Majority card check is more valuable than ever
Before Cemex, unions often used majority support through authorization cards as leverage to demand voluntary recognition, but many employers felt comfortable saying “go file for an election” and then running a hard anti-union campaign.
Now, a majority card check is the key that unlocks the Cemex framework:
- If the union can show clear majority support, and
- Makes a formal demand for recognition,
The employer faces a stark choice: either honor that majority or race to the Board for an RM election under heightened rules.
For New Jersey and New York unions represented by Zazzali, that means we are treating the card drive and recognition demand as central strategic tools, rather than mere preliminaries to an election petition.
2. The risk of a bargaining order after Cemex pressures employers to behave
Because a single unfair labor practice that would normally set aside an election can now lead directly to a bargaining order, employers must think twice before resorting to the usual playbook of coercive meetings, threats, and retaliatory discipline.
From a union perspective, this makes documenting employer misconduct during organizing campaigns more valuable:
- What used to be “just another ULP” may now be the decisive fact that converts a lost election into a bargaining order after Cemex.
- Even in close or divided bargaining units, strong evidence of unlawful behavior can give workers the representation they chose when they signed cards.
3. Cemex fits well with union-dense states like New Jersey and New York
New Jersey and New York have long histories of union density, public and private sector organizing, and sophisticated employer counsel. Cemex adds a new federal layer that union counsel can leverage in conjunction with state laws and contract protections.
Zazzali, P.C. has represented many of the most significant public sector unions in New Jersey for decades, as well as private sector unions and benefit funds, and our practice is deeply rooted in labor-side advocacy.
That experience matters now that the board’s rules are shifting rapidly. We understand how to integrate NLRB strategy with state law tactics, contract rights, and political context in New Jersey and New York.
Practical Takeaways On Card Check Demands After Cemex
Unions that want to make full use of the NLRB Cemex decision should think carefully about how they conduct card drives and recognition demands.
Build a clean, well-documented majority
Because a Cemex bargaining order rests on proof that the union had majority support at the time of its demand, we want to:
- Use clear, unambiguous authorization language on cards or digital authorization forms
- Record dates and maintain secure, confidential records of cards
- Confirm unit scope and ensure that a majority of employees in the appropriate unit have signed
The goal is to leave as little room as possible for an employer to argue that the cards did not reflect a genuine majority.
Use a formal recognition demand letter
The demand for recognition should:
- Clearly state that the union represents a majority of employees in an appropriate bargaining unit,
- Identify the unit,
- Request that the employer voluntarily recognize and bargain, and
- Offer a neutral card check or other verification if the employer wants confirmation.
We often recommend sending the demand both electronically and by certified mail, and keeping proof of receipt. That date starts the employer’s 14-day clock to file an RM petition.
Decide whether to simultaneously file a petition
Cemex does not forbid unions from filing their own RC petition, but it shifts the burden toward the employer’s RM petition. Different campaigns may call for different approaches:
- In some cases, the union may rely on the recognition demand alone, putting the onus entirely on the employer.
- In others, filing our own petition can hedge against employer delay or Board processing issues.
We work through those choices with our clients based on unit dynamics, employer behavior, and regional NLRB office practice.
RM Petitions After Cemex: What Unions Should Watch
Under Cemex, when a union has made a proper demand for recognition, an employer that does not want to recognize the union must promptly file an RM petition. If it fails to do so, the Board can find an 8(a)(5) violation and impose a bargaining obligation.
For unions, that means several things.
Track the timeline
We pay close attention to:
- The date the recognition demand is sent and received
- Whether and when the employer files an RM petition
- Any delay beyond the 14-day period highlighted in guidance and commentary
If an employer drags its feet, that delay itself can support a refusal to bargain charge under Section 8(a)(5).
Challenge RM petitions that rely on unlawful conduct
Even when the employer files on time, it must conduct its campaign lawfully. Under Cemex, if the Regional Director or Board finds that the employer committed unfair labor practices that would normally require setting aside the election, the remedy is a bargaining order instead of a rerun.
That is why union counsel should:
- Aggressively file ULP charges when the employer crosses the line
- Argue that those violations affected the election atmosphere
- Seek a bargaining order as the appropriate remedy
Cemex thus turns traditional employer delay tactics into potential pathways to recognition.
Documenting Employer Misconduct: A Post Cemex Checklist
Because employer unfair labor practices carry more weight after Cemex, documentation becomes mission-critical. Here are practical steps we recommend to organizers, stewards, and union committees in New Jersey and New York.
Train workers to recognize violations
We spend time educating organizing committees on what unlawful conduct looks like, including:
- Threats about plant closure, layoffs, or loss of benefits
- Promises of new benefits if workers reject the union
- Surveillance or implied surveillance of union activity
- Interrogation about how individuals or coworkers intend to vote
- Retaliatory discipline, schedule changes, or transfers aimed at union supporters
These are classic 8(a)(1) and 8(a)(3) violations that the General Counsel points to in her Cemex guidance.
Capture evidence in real time
We encourage workers and union staff to:
- Take contemporaneous notes of conversations and meetings
- Save written communications, such as emails, texts, and employer policy memos
- Photograph or copy flyers, posters, and scripts used in anti-union meetings
- Track who was present and what was said
The more detailed and credible the record, the easier it is to prove that unfair labor practices occurred and that they undermined a fair election.
Coordinate ULP charges with recognition and petition strategy
Cemex makes the timing and framing of ULP charges even more strategic. Union counsel should consider:
- Filing charges early and updating them as new misconduct occurs
- Linking the charges directly to the atmosphere around the RM or RC election
- Requesting specific remedies, including bargaining orders, based on the union’s majority support
At Zazzali, P.C., we integrate NLRB practice with our broader strategy in organizing campaigns so that every step, from card signing to hearing, supports the goal of durable recognition and a first contract.
How Zazzali, P.C. Supports Unions In A Post-Cemex Landscape
Zazzali, P.C. is a New Jersey labor law firm founded in 1925 with a strong focus on representing unions, public sector organizations, and employee benefit funds in New Jersey and New York.
Our attorneys regularly appear before the NLRB, PERC, and other agencies on behalf of unions and workers. We understand that decisions like Cemex are not academic. They redefine how organizing campaigns are planned and fought.
In a post-Cemex environment, we help our union clients by:
- Designing card campaigns that create strong foundations for majority recognition
- Drafting recognition demands that fully invoke Cemex protections
- Advising on when to rely on employer RM petitions and when to file union petitions
- Training organizing committees to spot and document unfair labor practices
- Litigating ULP charges and pursuing bargaining orders after Cemex, where appropriate
- Coordinating NLRB strategy with state law, contract rights, and political advocacy
Because we work with many of the most significant public sector unions in New Jersey and unions in diverse private sector industries, we bring a wide lens to each campaign while tailoring our advice to the specific workplace and workforce.
Contact Zazzali, P.C. Today for a Consultation About Your Case
The NLRB Cemex decision has changed the playbook for union organizing. Employers in New Jersey and New York who ignore the majority card check or rely on unlawful anti-union tactics now face a much greater risk of bargaining orders and mandatory recognition.
If your union is planning an organizing drive, facing an employer that refuses to recognize majority support, or dealing with serious unfair labor practices during an election campaign, we encourage you to talk with experienced labor counsel who understands Cemex and how to use it.
At Zazzali, P.C., we stand with unions and workers. We can help you:
- Evaluate whether your current campaign strategy takes full advantage of Cemex
- Structure card check demands and recognition letters to protect your members’ rights
- Respond when an employer files or fails to file an RM petition
- Document and litigate unfair labor practices with an eye toward bargaining orders
- Develop a comprehensive organizing and bargaining strategy that fits your industry and your members’ goals
To discuss how the Cemex framework affects your organizing efforts in New Jersey or New York, please contact Zazzali, P.C. today. You can reach us through the contact form on our website to schedule a confidential consultation with our labor attorneys.
We are ready to help you protect your right to organize, obtain recognition, and secure fair collective bargaining relationships in this new era of NLRB enforcement.
Disclaimer: The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.