Historically, the NLRB treated bargaining orders without an election as an extraordinary remedy—typically reserved for situations where employer misconduct made a fair rerun election impossible. Cemex shifted that approach by increasing the circumstances in which the Board could impose a bargaining order and by raising the stakes of election-related unfair labor practice allegations.
Going forward, the now Republican-majority Board has several options, including returning to a more traditional remedial analysis or revisiting, and potentially reversing, Cemex. Separately, additional challenges to Cemex remain pending in other federal courts of appeals and before the Board, so further developments are likely.