Current COVID-19 Alert

COVID Updates & Resources: Learn More

NLRB Drastically Changes Landscape of Organizing Campaigns for Employers

Earlier today, the National Labor Relations Board (“NLRB”) issued a decision in Cemex Construction Materials Pacific LLC, 372 NLRB No. 130 (2023) that completely changes the playing field for employers faced with a union organizing campaign. The Democratic majority established a new standard which provides for unionization through signed cards rather than votes and requires a disagreeing employer to immediately file an election petition. By issuing the decision, the NLRB also sharply lowered the threshold for issuing bargaining orders.

The Old Standard

In Linden Lumber Division, Summer & Co, 190 NLRB 718 (1971), the Board held that an employer does not violate Section 8(a)(5) of the National Labor Relations Act (the “Act”) “solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election.” Under this standard, employers were permitted to insist on a Board-conducted election as a precondition to bargaining.

The New Standard

In today’s decision, the NLRB overruled this old standard and adopted a new standard that is much more onerous on employers. Under the new standard, employers are now deemed to have violated Sections 8(a)(5) and (1) of the Act by refusing to recognize, upon request, a union that has been designated as a representative by a majority of employees in an appropriate unit, unless the employer promptly files a petition to test the union’s majority status or the appropriateness of the unit (assuming the union has not done so already). In the meantime, if an employer commits an unfair labor practice that requires setting aside the election, the employer’s election petition will be dismissed, the Board will rely on the prior designation of a representative by the majority of employees by nonelection means – namely signed authorization cards – and the employer will be ordered to bargain with the union.

If the employer neither recognizes the union nor promptly files a petition, the union is able to file an unfair labor practice charge against the employer for failing to bargain. If majority support in the appropriate unit is proven by any means, the Board will find the employer violated section 8(a)(5) of the Act by failing and refusing to recognize and bargain with the union, and will issue a remedial bargaining order requiring the employer to do so. Further, if the employer does not promptly file an election petition, its bargaining obligation goes into effect, and any unilateral changes made by the employer will be found unlawful upon the Board’s determination that the union had majority support. 

What it Means

In sum, the Board has significantly lowered the threshold for issuing a bargaining order as a remedy for a violation of Section 8(a)(5). Once presented with a demand to bargain from a union claiming majority status, an employer must immediately either (a) recognize the union or (b) file an election petition with the Board. If it fails to do so, the door is open for the union to file an unfair labor practice charge against the employer and any subsequent change the employer makes will be found to be a violation of the Act upon determination of majority status.

The Board also retroactively applied this new standard to all pending cases regardless of the stage of the case. If you have  questions regarding this new standard or believe it may apply to your company or organization, please contact Gaetano Urgo at or by telephone at (312) 995-7128.