Sixth Circuit Rejects NLRB’s Cemex Bargaining Order Framework

By Rachel Domash and R. Jason Patterson - Franczek P.C.

March 13, 2026

On March 6, 2026, the U.S. Court of Appeals for the Sixth Circuit issued a significant decision in Brown‑Forman Corporation d/b/a Woodford Reserve Distillery v. National Labor Relations Board, rejecting the Board’s controversial 2023 Cemex Construction framework, which altered the longstanding standard for union recognition and expanded the circumstances under which the Board could issue bargaining orders—even when a union did not win an election.

The Cemex Construction Framework

The Board’s 2023 Cemex Construction decision changed longstanding organizing principles in two major ways. First, when a union claims majority support, an employer has two weeks to either recognize the union or file its own petition with the Board seeking an election. Second, if an employer commits an unfair labor practice before an election, the Board can set aside the election and issue a bargaining order, regardless of the election results. This marked a significant departure from the 1969 Gissel standard, under which bargaining orders were reserved for extreme circumstances where unfair labor practices made a fair election impossible.

The Court’s Decision

The dispute arose from a union organizing campaign at Brown‑Forman’s Woodford Reserve distillery in Kentucky. During the campaign, the company implemented several compensation and benefit changes—including a $4‑per‑hour wage increase, modifications to pay‑progression and vacation policies, and the distribution of bottles of bourbon—shortly before the representation election. The union ultimately lost the election.

The NLRB found that these actions constituted unfair labor practices that interfered with employees’ free choice and, relying on Cemex, ordered Brown‑Forman to recognize and bargain with the union despite the election results.

On review, the Sixth Circuit agreed that substantial evidence supported the Board’s unfair labor practice findings. However, the court rejected the Board’s remedial approach, holding that Cemex amounted to an improperly promulgated rule of general applicability. The court emphasized that the Board may not use adjudication to announce sweeping policy changes untethered from the specific facts of a case or necessary to resolve the dispute before it.

The Sixth Circuit granted Brown‑Forman’s petition for review, denied the Board’s cross‑application for enforcement, and remanded the case for the NLRB to determine whether a bargaining order could be justified under the traditional Gissel standard or whether a rerun election is appropriate.

The Sixth Circuit’s decision in Brown‑Forman is the first federal appellate ruling to squarely reject Cemex, with potentially broad implications for pending and future representation cases.

Takeaways for Employers

For employers in the Sixth Circuit, the decision means that the court may not enforce bargaining orders issued under the Cemex framework. However, Cemex remains binding Board precedent, and the NLRB may continue to apply it in its decisions unless and until it is reversed by the Supreme Court or the Board itself revisits the standard. Accordingly, employers should continue to exercise caution during organizing campaigns.

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