With the election of President Trump in November 2024, employers were hopeful for a quick reversal of many of the pro-labor decisions of President Biden’s National Labor Relations Board (NLRB or Board). However, with President Trump’s termination of NLRB Board Member Gwynne Wilcox in January 2025 and the expiration of Member Marvin Kaplan’s term in August 2025, the Board was left with a single member for nearly all of President Trump’s first year. This lack of a quorum rendered the Board effectively defunct, which left the Board unable to change the Biden-era, labor-friendly precedent. 

On December 18, 2025, the U.S. Senate confirmed James Murphy and Scott Mayer to the Board, providing it with a quorum. Although the confirmations left the Republicans with a 2-1 majority, shortly thereafter, the new majority indicated that they would follow longstanding Board tradition by not overruling precedent in the absence of a three-member majority. See Lodi Volunteer Ambulance Rescue Squad, Inc., 374 NLRB No. 26 at slip op. 3 n.3 (Jan. 28, 2026). This means employers will need to wait a little longer before controversial decisions may be overturned, like Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023).

Cemex was one of the most significant Board rulings in decades. In short, Cemex makes it easier for unions to be certified without an NLRB secret-ballot election and sets forth a new framework for when employers must recognize a union. Under the previous standard, when an election was held, if the employer committed an unfair labor practice during the election period that could impact the results of the election, the Board would require the election to be set aside and hold a re-run election. Now under Cemex, if an employer commits an unfair labor practice after an election petition is filed, the Board will dismiss the petition entirely and order the employer to recognize and bargain with the union without an election. This standard removes the employees’ ability to anonymously decide whether or not they want a union in their workplace.

Cemex not only drastically changed the standard for how union elections work, but it also placed additional requirements on employers when they are faced with a union’s demand for recognition. Cemex’s holding requires that when an employer receives a request for recognition based on an alleged majority of employee support for a union, the employer must either (1) immediately recognize the union and start bargaining, or (2) within 14 days, file what is known as an “RM petition” seeking a secret-ballot election to verify the union’s alleged majority status. If the employer does neither, the NLRB can issue an affirmative bargaining order, and the employer will be required to recognize the union. If the employer files an RM petition and subsequently is found to have committed unfair labor practices, the NLRB will dismiss the RM petition and order that the union be recognized.

Cemex was a drastic shift in Board precedent and has come under intense scrutiny from the business community. The decision will likely be overturned by the Trump Board, but when and how that will occur is yet to be seen. Until the decision is overturned, employers must be mindful of Cemex and its consequences.