A federal appeals court has invalidated a National Labor Relations Board (NLRB) standard that eased a union’s path to recognition. On March 6, 2026, the Sixth Circuit U.S. Court of Appeals ruled that the NLRB overstepped its authority when it created a new framework for issuing bargaining orders in Cemex Construction Materials Pacific, LLC.
For employers in the Sixth Circuit (Ohio, Michigan, Kentucky, and Tennessee), this ruling limits the NLRB’s ability to impose bargaining orders under the Cemex standard.
Background: How Unions Gain Recognition
With limited exceptions, to be recognized as the exclusive bargaining representative of a group of employees, a union must show it has majority support. There are three paths for a union to obtain recognition:
- A secret ballot election conducted by the NLRB;
- An employer’s voluntary recognition of the union based on proof of majority support; or
- A Board order requiring an employer to recognize and bargain with a union.
For over 50 years, the third path—bargaining orders—was based on a standard approved by the U.S. Supreme Court in NLRB v. Gissel Packing Co. Gissel bargaining orders have been rare and limited to situations where an employer engages in egregious unfair labor practices that undermine the union’s majority status and makes a fair re-run election unlikely.
What the NLRB’s Cemex Rule Changed
In 2023, the NLRB created an easier standard for the issuance of bargaining orders against employers in Cemex. First, the Cemex decision imposed an unprecedented burden on employers that receive a demand for union recognition: either (a) voluntarily recognize the union; or (b) file a petition for an election to test the union’s majority status. Then, if the employer petitions for an election and the Board finds that it committed any unfair labor practice, election results would be set aside and the employer would be ordered to recognize and bargain with the union.
Sixth Circuit Finds the Cemex Framework Invalid
On March 6, the Sixth Circuit issued its decision in Brown-Forman Corporation, dba Woodford Reserve Distillery v. NLRB. In this case, Brown-Forman Corporation filed a petition for review of the NLRB’s adoption of a decision of an NLRB administrative law judge (ALJ) who determined that the employer committed unfair labor practices during the pre-election period and recommended a bargaining order under Cemex. This opened the door to the Sixth Circuit’s scrutiny of the Cemex decision and its ruling that the bargaining order issued against Brown-Forman cannot be enforced.
The court explained that the NLRB improperly exercised its authority when it created the Cemex standard. It noted that the Board “violat[ed] principles of ‘reasoned decision making’” when it replaced more than five decades of precedent under Gissel “without sufficient justification.” Specifically, unlike the Gissel standard, the Cemex standard only looks at whether a previous election was unfair, not at whether it could still proceed to a rerun secret ballot election. The court further pointed out that the Cemex standard was neither based on the specific facts of that case nor created to resolve the dispute at issue in that case.
For these reasons, the court ruled that Cemex cannot serve as the basis for future orders to employers to recognize and bargain with a union.
What the Sixth Circuit Decision Means for Employers
The Sixth Circuit is the first federal appeals court to rule on the validity of Cemex. It is important to note that the decision only prohibits application of the Cemex standard within the federal in Ohio, Michigan, Kentucky, and Tennessee. The NLRB will continue to apply the Cemex standard until the U.S. Supreme Court or the Board reverses the decision. For now, employers in the Sixth Circuit are well positioned to challenge bargaining orders that are based on the Cemex standard. For employers operating elsewhere, this decision provides a good roadmap for challenging bargaining orders that are based on Cemex.
If other federal circuits rule differently than the Sixth Circuit, the validity of Cemex may end up before the U.S. Supreme Court. Regardless, this decision further confirms that leading up to a union election, employers must remain vigilant about avoiding actions that could be interpreted as an effort to undermine unionization efforts (e.g., promises of better benefits, wage increases, threats of job loss, etc.). Careful planning and evaluation of employer actions is imperative to avoid unfair labor practices and bargaining orders.
We will remain on top of further developments related to the Cemex standard.
