On March 6, 2026, the United States Court of Appeals for the Sixth Circuit became the first federal appeals court to reject the National Labor Relations Board’s (NLRB or Board) 2023 decision in Cemex Construction Materials Pacific, LLC, in which the NLRB changed the standard for issuing affirmative bargaining orders requiring employers to recognize and bargain with a union even after employees vote against union representation.
In Cemex, the Board expanded the circumstances when it would order employers to bargain with unions that did not win elections, due to the employer violating federal labor law. Under the Cemex standard, when an employer commits an unfair labor practice that requires setting aside an election that the union lost, rather than direct a second, rerun election, the election petition is dismissed and the employer is required to recognize and bargain with the union. Under Cemex, bargaining orders became the default remedy in cases where an employer’s unlawful conduct required that an election be set aside, as opposed to the more limited use of bargaining orders under the previous standard, known as the Gissel standard, where bargaining orders would only be imposed where it was shown that an employer’s unfair labor practices were so serious as to undermine any possibility of a fair rerun election.
In Brown-Forman Corp. v. NLRB, a union began organizing employees at a bourbon distillery. After learning about the organizing, the employer responded by improving employees’ pay, including raising wages by $4 per hour. One week before the election, the company gave all employees free bottles of bourbon. The union lost the election by a substantial margin – only 14 of the 59 employees voted for representation. The union objected and filed unfair labor practice charges alleging that the wage increases and free bourbon tainted the vote, and the NLRB agreed that those actions constituted unfair labor practices. But rather than ordering a new election, the NLRB applied Cemex and ordered the company to recognize and bargain with the union, reasoning that the company’s unfair labor practices purportedly eliminated the chance of a fair second election.
The company appealed the NLRB’s decision to the Sixth Circuit, which prompted this important new opinion. The Sixth Circuit agreed with the Board that the company’s pre-election activity violated federal labor law and reasonably tended to coerce employees during the election. But the Sixth Circuit disagreed about the remedy. Rather than affirm the bargaining order, which the court described as an “extraordinary remedy,” it found that the NLRB improperly relied on Cemex in ordering the company to bargain with the union, rather than order a rerun election. The Sixth Circuit held that the Board exceeded its adjudicatory authority in Cemex, and did not actually reach a conclusion on whether the Board’s Cemex standard was a valid interpretation of the National Labor Relations Act.
Specifically, the Sixth Circuit reasoned that the Cemex standard was not “derived from the case-specific facts of the contemporaneous adjudication,” nor created “in furtherance of resolving the parties’ dispute.” In essence, the court determined that the NLRB had improperly used Cemex as a vehicle to create a new standard when the facts of the case did not support the new standard. Because the Cemex standard was improperly created, the Sixth Circuit found it could not serve as the basis for future orders in other cases, including the case before it.
Although this holding currently is limited to states within the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee), it paves the way for employers around the country to challenge NLRB-imposed bargaining orders issued under Cemex. (Employers should exercise caution, however, because the Board still may issue bargaining orders to remedy labor law violations in other ways.) This ruling also comes as the newly reconstituted, majority Republican-appointed Board may be poised to revisit, and potentially overturn, the Cemex decision. If and when the Board does so, we’ll update the blog, as well as continue to report on any updates and developments.
