A recent decision from the U.S. Court of Appeals for the Sixth Circuit may cut short the National Labor Relations Board’s (NLRB) recent approach to union recognition and bargaining orders following representation elections.
In Brown-Forman Corp. v. NLRB, decided March 6, 2026, the Sixth Circuit rejected the NLRB’s reliance on its prior administrative decision in NLRB v. Cemex Construction Materials Pacific, LLC to impose a bargaining order after a union election loss. The court concluded that the Board improperly relied on the standard it adopted in Cemex, finding that the framework had been created through its own adjudication rather than through formal rulemaking procedures.
The court vacated the bargaining order and remanded the case to the NLRB for further proceedings, leaving open whether a bargaining order could be justified under existing precedent.
For employers in Ohio and throughout the Sixth Circuit, the decision represents an important development in the evolving legal framework governing union organizing campaigns.
Background: The Cemex Decision
In 2023, the NLRB issued a decision in Cemex Construction Materials Pacific, LLC that significantly changed the union recognition process. That decision replaced the standard for remedying an employer’s interference with a union election that had been established by the U.S. Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969.)_
In such circumstances, the prior standard instituted by the U.S. Supreme Court in Gissel, the NLRB would require the order of a new election if it found grounds to set aside the election based on outrageous and pervasive unfair labor practices by the employer or actions that had the tendency to undermine the majority strength and impede the election process either of which would seriously undermine any possibility of a fair rerun election. However, in Cemex, the NLRB instructed that once it set aside the election, it could order the company to recognize the union as the default remedy without factoring in the severity of the employer’s conduct. Cemex overturned fifty years of jurisprudence that recognized the importance of secret ballot elections as the preferred method of determining whether a union has majority support of the employees who will be in the bargaining unit. Bargaining orders that force a company to recognize a union even though the election failed were considered to be the last resort.
Cemex expanded the circumstances in which the NLRB could issue bargaining orders, which historically had been reserved for more serious violations under the Supreme Court’s decision in Gissel.
The Brown-Forman Case
The Sixth Circuit’s decision arose from a union organizing campaign involving production workers at Brown-Forman’s Woodford Reserve distillery in Kentucky. During the organizing campaign, the union collected authorization cards from a majority of employees. Brown-Forman declined voluntary recognition, and a representation election was held. Immediately prior to the election, Brown-Forman implemented a wage hike and passed out free bottles of bourbon to the employees. The union ultimately lost the election.
Following the election, the union filed unfair labor practice charges alleging that the company attempted to influence the vote and interfere with the unionization election. The NLRB concluded that the company had committed unfair labor practices and set aside the election results. Relying on the Cemex framework, the Board ordered the employer to recognize and bargain with the union.
On review, the Sixth Circuit agreed that substantial evidence supported the Board’s finding that unfair labor practices occurred but rejected the Board’s reliance on the Cemex framework as the basis for imposing a bargaining order. The court held that the Board’s adoption of the Cemex framework represented a significant policy change that should have been implemented through rulemaking rather than through an adjudicatory decision. As a result, the court vacated the bargaining order and remanded the matter to the Board for reconsideration.
Implications for Employers
While the decision limits the NLRB’s ability to rely on the Cemex framework in the Sixth Circuit to impose union recognition, the ruling does not eliminate the possibility of bargaining orders in appropriate circumstances.
Employers should keep several considerations in mind:
The legal landscape remains unsettled
Challenges to the Cemex framework are ongoing in other federal circuits, and future decisions may further clarify the Board’s authority in this area.
Unfair labor practices during organizing campaigns remain significant
Even without the Cemex framework, unfair labor practices can still lead to election challenges, rerun elections, or bargaining orders under existing precedent.
Union authorization cards still carry legal significance
Evidence of majority support through authorization cards can trigger important legal and strategic considerations during organizing activity.
Workplace decisions during organizing campaigns may be closely scrutinized
Changes to wages, benefits, or workplace policies during organizing drives can form the basis for unfair labor practice allegations.
Documentation remains important
Maintaining clear records of communications, operational decisions, and business justifications may be important if organizing activity results in an NLRB dispute.
Looking Ahead
The Sixth Circuit’s decision adds to the ongoing legal debate surrounding the Cemex framework and the scope of the NLRB’s authority in representation disputes. Because litigation involving the Cemex standard is continuing in other federal courts, additional developments in this area are likely.
Employers navigating union organizing activity should continue to monitor developments in labor law and evaluate their approach to organizing campaigns carefully.
For additional information regarding the content of this article, please contact KJK Labor & Employment attorneys Maribeth Meluch (MM@kjk.com), Beth Spain (BRS@kjk.com) or Robert Gilmore (RSG@kjk.com).