9th Circuit Dodges The NLRB’s Cemex Standard
On April 21, 2026, the U.S. Court of Appeals for the Ninth Circuit upheld a National Labor Relations Board (NLRB or Board) order requiring Cemex Construction Materials Pacific LLC to bargain with a union due to widespread unfair labor practices by the employer. Unfortunately for employers, the court based its decision on the legal standard established by the U.S. Supreme Court in NLRB v. Gissel Packing Co., Inc. (1969), and refrained from considering the new bargaining order standard adopted by the Board in its earlier Cemex ruling.
A bargaining order is the Board’s ultimate remedy for pre-election and election misconduct. In issuing a bargaining order, the Board essentially throws out an employer’s election win and orders the employer to recognize and bargain with the union if it finds an employer has engaged in sufficient misconduct to taint a rerun election. A bargaining order is supposed to be an extraordinary remedy used in the most egregious cases. In 2023, however, the Board adopted a new standard for determining when employers can be forced to recognize and bargain with unions. The new framework, announced in the NLRB decision Cemex Construction Materials Pacific, LLC (2023), was a major change in the law which made a bargaining order much easier to obtain. The Cemex decision also significantly changed election procedures by, in part, putting the burden of seeking an election upon the employer instead of the union.
In the recent Ninth Circuit appeal of this case, Cemex and business groups urged the court to overrule the Board’s new standard for bargaining orders, but the court declined. The court instead considered the facts of the case under the legal standard from Gissel, finding sufficient evidence to support the bargaining order against Cemex under that test. As such, ruling upon the new standard adopted by the Board was unnecessary and would only serve to “delay this case’s resolution.”
This unfortunate decision diverges from a March 2026 decision from the U.S. Court of Appeals for the Sixth Circuit which invalidated Cemex for employers in that jurisdiction. In the case of Brown-Forman Corp. dba Woodford Reserve Distillery v. NLRB, the Sixth Circuit Court determined that the Board exceeded its authority in issuing the new bargaining order standard without using the rulemaking process. Due to the Ninth Circuit’s failure to overrule Cemex, employers in all other jurisdictions, including Nevada, are left waiting and hoping that the Board itself, with new members, will eliminate the Cemex ruling.
KZA attorneys are well versed in labor law and NLRB procedures. If you have questions about bargaining orders or an NLRB matter, please contact us.
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