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NLRB Cemex Decision and Quick Election Rule: New Standard Expediting Unionization, Heightened Employer ULP Risk

Employer Options When Faced with Union Demand; Timeline to Respond; Best Practices to Mitigate Risk

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, March 6, 2024

Recorded event now available

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This CLE webinar will guide counsel through the NLRB's recent Cemex decision that overturned 50 years of precedent and established a new framework by which private sector employees may unionize and the new 2023 Election Rule that shortens the time period between union petitions and elections, thereby accelerating the unionization process. The panel will examine increased employer obligations and risks, discuss notable post-Cemex decisions, and provide best practices for compliance.


The NLRB's recent decision in Cemex Construction Materials Pacific L.L.C. (2023) overturned 50 years of precedent and essentially re-wrote the process by which private sector employees can unionize. The new standard requires employers to voluntarily recognize unions or promptly initiate election proceedings. Under the new Cemex standard, when a union claims majority support and demands recognition, an employer has three potentially perilous options: (1) recognize the union and begin bargaining without testing whether the union actually has majority support; (2) file an RM petition within two weeks of the union's demand to determine union support; or (3) take no action and defend against a refusal to bargain unfair labor practice (ULP) charge.

The NLRB General Counsel's follow-up guidance memo to Cemex states that "employers act at their own peril in refusing to recognize and bargain" and that the NLRB will seek bargaining orders under the new Cemex doctrine if employers fail to recognize a union or commit even one ULP in the run-up to an election. The new standard will be applied retroactively.

Additionally, the NLRB recently released the 2023 Election Rule (a.k.a. the "quickie" election rule), effective Dec. 26, 2023, that governs representation-case procedures. The new rule shortens the time period between union petitions and elections, thereby limiting the employer's ability to respond to a union-organizing campaign and expediting the unionization process.

Listen as our expert panel provides an in-depth look at the Cemex opinion and 2023 Election Rule and their impact on employers. The panel will examine notable post-Cemex decisions. The panel will also provide practitioners with best practices for helping employers prepare for accelerated union activity and mitigating the risk of committing a ULP.



  1. Background: how did we get here?
    1. Linden Lumber Division, Summer & Co. (1971)
    2. 2014 Election Rule
    3. 2019 Election Rule
  2. New 2023 Election Rule
  3. Cemex Construction Materials Pacific L.L.C. (2023)
  4. NLRB General Counsel Cemex guidance memo
  5. Notable post-Cemex decisions
  6. Employer impact
  7. Best practices for compliance


The panel will review these and other important considerations:

  • How does the Cemex standard differ from the precedent established by Linden Lumber?
  • What new obligations and risks does Cemex create for employers?
  • How does the 2023 Election Rule differ from the 2019 rule?
  • What procedural changes are included in the new election rule?
  • How does the new election rule limit how employers may respond to union organizing campaigns, and what risks does it create for employers?
  • What are best practices for minimizing the risk of committing a ULP under the Cemex framework and the new election rule?


Fox, Joshua S.
Joshua S. Fox

Senior Counsel
Proskauer Rose

Mr. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management...  |  Read More

Franklin, Corey
Corey Franklin


Mr.  Franklin’s legal practice is focused on the representation of management in labor relations issues and...  |  Read More

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