On April 21, 2026, the Ninth Circuit Court of Appeals affirmed the National Labor Relations Board’s (“Board”) issuance of bargaining orders in Cemex Construction Materials Pacific, LLC v. NLRB. The Board’s landmark 2023 Cemex decision – which had been pending on appeal for nearly three years – adopted a new standard for issuing bargaining orders that expanded the Board’s authority to issue them (“Cemex Framework”). In doing so, the Board discarded the Supreme Court’s Gissel framework, which had served as the relevant standard for more than 50 years.
Crucially, the Ninth Circuit did not opine on the viability of the Board’s union-friendly Cemex Framework. Instead, it affirmed the Board’s bargaining order under the more restrictive Gissel framework. The Court’s decision avoids creating a circuit split (the Sixth Circuit rejected the Board’s Cemex Framework in March 2026) and effectively allows the Board to keep applying the Cemex Framework, at least outside of the Sixth Circuit, until it is definitively shut down.
The Cemex Framework
As explained in Dinsmore’s March 13 and April 17, 2026 labor alerts, these cases control when the Board can force an employer to bargain with a union after election-related misconduct.
Up until recently, the Supreme Court’s 1969 decision in NLRB v. Gissel Packing Co. authorized the Board to order bargaining only if:
1. The union previously had majority support, and
2. The employer’s misconduct was so serious that a fair rerun election was unlikely.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The Supreme Court’s Gissel decision – which empowered the Board to issue a bargaining order only when other remedies (such as a rerun election) were insufficient to protect employees’ choice to unionize – served as the Board’s bargaining-order standard for more than 50 years.
The Board’s 2023 Cemex decision upended Gissel. In Cemex, the Administrative Law Judge determined the employer engaged in unfair labor practices by threatening employees with plant closures, job loss and other reprisals, which resulted in a failed election that previously had majority support. The Board agreed. The Board determined bargaining orders were appropriate under Gissel because the employer’s violations were so egregious that the prospect of ensuring a fair rerun election was “slight.”
Crucially, the Board also announced that it would “no longer look to Gissel” in determining whether to order bargaining, and would instead require an employer to bargain anytime it “commits an unfair labor practice that requires setting aside the election,” regardless of whether or not a fair rerun election is possible. The Board applied this new Cemex Framework to the facts of Cemex retroactively. The Board’s Cemex decision made bargaining orders easier to impose, even where traditional remedies – like rerun elections – might still work.
On appeal to the Ninth Circuit Court of Appeals, the employer argued the Board’s union-friendly Cemex Framework was contrary to the Supreme Court’s Gissel standard and requested that the bargaining order be set aside.
The Sixth Circuit Rejects the Cemex Framework
On March 6, 2026 – while the Cemex appeal was pending in the Ninth Circuit – the Sixth Circuit issued a decision rejecting the Cemex Framework in Brown-Forman Corp. v. NLRB, 169 F. 4th 646 (6th Cir. 2025). The Sixth Circuit held that the Board engaged in improper rulemaking through adjudication when it adopted the Cemex Framework. As a result, even though the Sixth Circuit found the employer unlawfully interfered with an election, it decided it “cannot enforce” the Board’s bargaining order and sent the case back to the Board.
The Ninth Circuit Affirms the Cemex Bargaining Order Without Opining on the Cemex Framework
Immediately after the Brown-Forman decision, the parties in Cemex filed conflicting arguments about the effect of the Sixth Circuit’s decision on the appeal pending before the Ninth Circuit. The employer argued Brown-Forman proved the Board’s Cemex decision exceeded the Board’s adjudicatory powers. The Board disagreed, argued that the Sixth Circuit’s “flawed” analysis wrongly limited the agency’s authority, and urged the Ninth Circuit to uphold the Cemex Framework.
On April 21, 2026, the Ninth Circuit entered an order affirming the Board’s Cemex decision. The Ninth Circuit agreed the employer unlawfully interfered with the election and affirmed the bargaining order. Specifically, the Ninth Circuit held that a fair re-run election was unlikely in light of the employer’s misconduct, and accordingly, the bargaining order was appropriate under Gissel.
But perhaps the most important aspect of the Ninth Circuit’s opinion is what it does not include: it does not include any substantive discussion of the Cemex Framework. The Ninth Circuit explained that, because it affirmed the bargaining order under the more restrictive Gissel framework, it did not need to “reach the parties’ dispute over the retroactive application of the new standard for a bargaining order adopted by the Board” and “express[ed] no view” on the Cemex Framework.
Takeaways
The Ninth Circuit could have joined the Sixth Circuit in rejecting the Cemex Framework outright, or it could have affirmed the Cemex Framework, which would have established a circuit split and set the stage for Supreme Court review. By choosing to do neither, the Ninth Circuit’s decision means the Board’s authority to issue bargaining orders under the Cemex Framework will remain unsettled.
In the meantime, employers outside of the Sixth Circuit (Michigan, Ohio, Kentucky, Tennessee) should be aware that the Board will likely continue to enforce the union-friendly Cemex Framework (as it did after Brown-Forman). Dinsmore’s labor and employment attorneys will continue tracking these developments closely and provide updates as courts weigh in on the future of the Cemex Framework.