With the April 21, 2026 Ninth Circuit court’s affirmation of the NLRB Cemex bargaining order coming on the heels of the March 6th circuit rejection of it, the NLRB will likely continue applying its union-friendly organizing framework outside the Sixth Circuit (MA is in the 1st Circuit). These conflicting court decisions raise the likelihood of a Supreme Court showdown.
Under Cemex, the NLRB sped up the timeframe for elections and ruled that unfair labor practices committed by an employer in conjunction with an election can require automatic union recognition, bypassing an actual employee vote. Under the prior longstanding Gissel standard, unfair labor practices did lead to automatic union recognition, and generally resulted in employer sanctions, or, if serious, a new election.
Next Steps and Future Outlook:
- Circuit Split & Supreme Court: The Sixth Circuit rejected the Cemex framework (March 2026), while the Ninth Circuit upheld the order. This conflict makes a Supreme Court review likely.
- Continued Enforcement for Now, But Labor Dept. Changes: Despite the 6th Circuit setback, the NLRB thus far has continued to enforce the Cemex framework, which requires employers to voluntarily recognize unions or file a request for an election within two weeks of a demand. But Labor Secretary Lori Chavez-DeRemer resigned on April 20, and Deputy Secretary Keith Sonderling, more management-oriented, has been named acting secretary. ABC supports Sonderling. Also, President Trump has nominated James Macy to be the newest NLRB Board member. If confirmed by the Senate, Macy would give Republicans a 3-1 working majority on the five-member Board (with one seat still open), positioning the Board to revisit and potentially reverse many pro-union/employee Biden-era decisions.
- Strategic Employer Response: Employers should focus on preemptive training to avoid unfair labor practices and be prepared for expedited union election timelines. Any ABC MA members dealing with union issues can contact Greg Beeman at [email protected].