The time finally arrived for the Ninth Circuit to weigh in on the Biden Board’s most aggressive standard. They punted. Yet before we discuss the appeals court’s ruling in Cemex Construction Materials Pacific, LLC v. NLRB, we need to retrace how that standard emerged and the fallout.
The Procedural Path Of A Disruptive Standard
In 2023, the Abruzzo Board’s Cemex decision repudiated the Supreme Court’s 1969 Gissel ruling, putting businesses at risk of a bargaining order over a single ULP charge, even in cases where unions lost an election. At that time, our own Phil Wilson called the Board’s move “a ‘prior restraint’ on employer speech.” Indeed, the Cemex framework sharply contrasts with the Gissel standard, which favor issuing bargaining orders only for extreme employer conduct.
Naturally, multiple court disputes have followed. In March 2026, the Sixth Circuit declined to enforce a Cemex bargaining order in Brown-Forman Corporation v. NLRB and remanded the case for review at the NLRB. Although those judges agreed with the Board’s fact finding regarding ULPs, the Sixth Circuit judges seemed “leery” of using Cemex in a case involving a whiskey-maker’s conduct during a Teamsters election. Ultimately, the court determined that the Board “exceeded its adjudicatory authority” and remanded the case for review at the NLRB.
More recently in St. John’s College, the Board determined that Cemex’s timeliness rule does not apply to RM petitions, a procedural carve-out that benefits employers seeking to test majority status.
It would seem that more Cemex dominoes were poised to fall, but that didn’t happen with the Ninth Circuit, which handled the employer’s appeal of the pivotal NLRB decision.
Cemex Construction Materials Pacific, LLC v. NLRB
In Oct. 2024, the Ninth Circuit heard oral arguments in this case (also involving an election lost by the Teamsters) and took no further action until this week, when the Ninth Circuit sidestepped the Cemex doctrine and affirmed the Board’s bargaining order under Gissel.
This ruling is “not surprising,” declared Wilson, but “disappointing because the majority completely glosses over both the argument from the dissent and the opportunity to address the recent decision in Brown-Forman.”
Wilson called Judge Richard Clifton’s dissent “a great job of explaining why Cemex was so poorly reasoned in the first place.” The Board’s bargaining order, Wilson noted, rested on a factual finding that never appeared in the ALJ’s opinion. The Board “grabbed the word ‘slight’ out of context” to claim the ALJ had found the chances for a free and fair election were slim. That’s a conclusion that the ALJ explicitly rejected, which is why no bargaining order came out of the original proceeding.
Indeed, Judge Clifton declared that the Abruzzo Board “was prepared to change the rules and applied the new standard to the facts of this case retroactively in order to reach the same result that it had already reached.” Clifton would have preferred to remand to the Board. “Changing the rules in the middle of a game,” he wrote, “implied recognition that the goal could not properly be reached otherwise.”
Wilson also faulted the majority for failing to address the potential circuit conflict with Brown-Forman. “I’m hoping that there is a request for rehearing for this exact reason,” he said.
The Clean-Up To Come
Elsewhere, the D.C. Circuit has yet to rule on pending Cemex litigation in NP Red Rock LLC vs. NLRB with those judges signaling their willingness to apply Gissel rather than Cemex to issue a bargaining order in a case involving a Las Vegas casino.
As for where the current, employer-friendly NLRB stands, look for Cemex to be up for review after Board nominee James Macy is confirmed, which will give the Board a third vote to overturn precedent. Yet the timing of that process will depend on whether a suitable case reaches the Board.
Employers should know that Gissel bargaining orders remain a risk where ULPs occur during organizing campaigns, although re-run elections are the likelier remedy. If Cemex goes away entirely, that’s a net win for employer free speech.
