The Cemex Construction Materials Pacific, LLC v. NLRB decision is in – it’s impactful, but notably unfinished.
The Ninth Circuit enforced the Board’s order, including a bargaining order under NLRB v. Gissel Packing Co. That part isn’t surprising. What is notable is what the court didn’t do: it declined to address the Board’s new Cemex framework altogether.
The Easy Part: Gissel Still Lives
The Ninth Circuit had little trouble affirming the Board’s traditional Gissel bargaining order. Applying familiar standards, the Court found the case fit squarely within Gissel territory. During the organizing campaign, Cemex committed “hallmark” unfair labor practices (“ULP”) – threats of closure, discharge of a union supporter, coercive statements – and there was a record showing majority support via authorization cards and that traditional remedies would not cure the coercive atmosphere to allow for a fair rerun election. As the Court reiterated, bargaining orders remain appropriate where the “possibility of erasing the effects” of ULPs and ensuring a fair rerun election is “slight.”
The Interesting Part: The Court Dodges Cemex
Here’s the headline – the Ninth Circuit explicitly declined to rule on the Board’s new Cemex standard.
The Board had argued for its new framework – i.e. where an employer’s refusal to recognize a card-based majority, followed by any ULP that taints an election, can trigger a bargaining order. However, the court sidestepped the issue entirely and affirmed the bargaining order under the Gissel standard alone. This is a classic appellate move: decide the case on narrower, settled grounds and avoid stepping into a doctrinal fight.
Why This Wasn’t an Accident
The restraint looks deliberate – and strategic:
- The Ruling Avoids a Circuit Split (for now) – the Sixth Circuit has already taken aim at the Board’s Cemex framework. By declining to weigh in, the Ninth Circuit avoids an immediate circuit split, preserves flexibility for a future, cleaner case, and leaves the issue for potential Supreme Court review.
- The Case Was a Bad Vehicle – from a practitioner standpoint, this case was too messy to test Cemex based on extensive, well-documented ULPs and strong evidence supporting a traditional Gissel order.
- Judicial Skepticism Is Brewing – reading between the lines, courts are increasingly wary of the Board lowering the bar for bargaining orders, moving away from elections as the “preferred method” of determining majority support, and retroactively applying new standards. The dissent in this case underscores that tension, criticizing the Board’s expansion beyond Gissel and its shifting rationale.
What This Means for Employers
In the short term, Gissel remains fully viable – sufficiently severe ULPs during organizing can lead to a bargaining order under this standard. In the medium term, the Cemex framework is still in play at the Board level. And, in the long term, the issue is likely heading toward a circuit split showdown and will likely result in Supreme Court involvement.
If you find yourself amid union organization activity and have questions about the process, contact Tashayla Billington or Mark S. Spring in CDF’s Labor Management Relations Practice Group.
