On April 21, 2026, in Cemex Construction Materials Pacific, LLC v. National Labor Relations Board, Case No. 23-2302 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit declined to evaluate the new union-organizing standard adopted by the National Labor Relations Board (“NLRB” or the “Board”) in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023) (“Cemex”). The Ninth Circuit’s decision is an unpublished memorandum disposition.  

The court held that the employer’s unfair labor practices during and leading up to a union representation election were sufficient to warrant a bargaining order under the traditional NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) standard, making it unnecessary to reach the Board’s newer Cemex framework.  

Background

As previously reported, the NLRB’s 2023 Cemex decision—one of the most significant Board rulings of the Biden administration—upended nearly 50 years of precedent by creating a new framework for responding to union recognition demands and lowering the bar for remedial bargaining orders.

Under Cemex, an employer confronted with a recognition demand must decide within two weeks whether to (a) accept recognition and bargain, or (b) file an RM petition to test the union’s majority status. Cemex also replaced the longstanding Gissel standard for bargaining orders: if the Board finds that an employer committed unfair labor practices frustrating a free, fair, and timely election, it will dismiss the election proceedings and issue a bargaining order as the default remedy. Since Cemex was issued, employers have broadly challenged this framework.  

The Case

The Ninth Circuit heard oral argument in October 2024 (discussed here) but held its ruling until a separate Ninth Circuit panel resolved a related challenge to one of the remedies the Board imposed on Cemex.

Although the panel devoted significant attention at oral argument to the Board’s new bargaining-order standard, the court ultimately sidestepped the issue in its decision.

The court reasoned that the Board was “well within its range of discretion” to issue a bargaining order under the traditional Gissel standard, making it unnecessary to opine on Cemex because doing so would “unnecessarily delay th[e] case’s resolution.”

In dissent, Judge Richard Clifton would have vacated the Board’s bargaining order and remanded for further consideration, finding that the Board’s decision to change the bargaining-order standard cast “a substantial shadow on everything the Board did with this case.”  Though Judge Clifton did not directly address Cemex’slegality, he called the Sixth Circuit’s rejection of the Cemex bargaining-order framework in Brown-Forman Corp. v. NLRB (reported on here) “persuasive.” 

Takeaways

The Cemex framework remains good law—unless and until reversed by the Supreme Court or, more likely, the NLRB itself reverses it. 

The Board has continued to apply Cemex (as reported here), but is expected to overturn the decision once a third Republican member is confirmed by the Senate and the NLRB regains a three-Member majority. 

This reflects the Board’s recent pattern of continuing to apply Biden-era precedents when it lacks the votes to overturn them.  A recent example is the Board’s application of McLaren Macomb, 372 NLRB No. 58 (2023)—which held that broad confidentiality and non-disparagement clauses in severance agreements violate Section 8(a)(1) of the National Labor Relations Act—in Prime Communications, LP, 374 NLRB No. 88 (2026). 

As we recently reported, on April 13, 2026, President Trump nominated James Macy to fill the third vacant Republican seat on the NLRB and re-nominated Democratic Board member David Prouty to a second term—a political maneuver that may speed Senate confirmation for both nominees.  Once confirmed, the reconstituted Board could move to reconsider Cemex, McLaren Macomb, and many other Biden-era NLRB decisions.  We will continue to monitor these developments.