Hey, Cemex non-fans. The time finally arrived for the Ninth Circuit to weigh in on the Biden Board's most aggressive standard, which was meant to chill employer speech during organizing campaigns. 

Did the Ninth Circuit truly handle the Cemex issue, though? Not really. They kicked the can back to the NLRB for further action.

In Oct. 2024, this appeals court heard oral arguments in Cemex Construction Materials Pacific with no further action until now. The Board itself pushed for a resolution in Nov. 2025. This week, the long wait resulted in the Ninth Circuit sidestepping the Cemex doctrine. The judges chose, instead, to affirm an NLRB bargaining order under the Gissel standard.

Our own Phil Wilson reacted to this Ninth Circuit decision, calling it “not surprising, but it’s disappointing.” We’ll have much more from Phil coming in an article on the INK website. Look for that soon.

Meanwhile, the Ninth Circuit’s decision leaves Cemex in the hands of the NLRB. There, the standard will likely be overturned after Board nominee James Macy is confirmed, leading to a third GOP vote to overturn precedent. 

However, that process could take months or years, depending on whether a suitable case reaches the Board.