On March 6, the United States Court of Appeals for the Sixth Circuit became the first federal appellate court to reject the National Labor Relations Board’s 2023 Cemex
standard, which was adopted during the Biden administration.
Under the Cemex
framework, the National Labor Relations Board (NLRB) could order an employer to recognize and bargain with a union if the employer committed unfair labor practices during an organizing campaign, even if the union ultimately lost the election. In Brown‑Forman Corp. v. NLRB, 2026 WL 632679 (6th Cir. 2026), the Sixth Circuit held that the Board overstepped its authority by effectively creating a sweeping new regulatory framework through a single adjudicated case under Cemex rather than through formal rulemaking.
NLRB’s Policymaking Authority
In the National Labor Relations Act, Congress assigned the NLRB primary responsibility for developing and applying national labor policy. The Board typically does so through two mechanisms:
Rulemaking: The NLRB issues formal regulations that establish generally applicable policies or standards. Rulemaking typically involves public notice and an opportunity for comment.Adjudication: The Board decides individual cases and, through those decisions, interprets and applies labor law to specific disputes. Over time, these decisions can shape broader policy.
The 2023 Cemex Standard
Before Cemex, employers generally had the option to decline voluntary union recognition and instead insist on a secret-ballot election supervised by the NLRB. Cemex
significantly changed that process. When a union claimed majority support and requested recognition, an employer that declined recognition was required to promptly file a petition for an NLRB election. If the employer committed any unfair labor practices during the organizing campaign, the Board would typically issue a bargaining order rather than direct a second election. As a result, employer conduct that historically might have led to a second election could instead trigger an immediate order requiring the employer to bargain with the union.
The Brown-Forman
Case
The case arose from a union organizing campaign at a Kentucky distillery operated by Brown‑Forman Corporation. During the campaign, the employer provided wage increases, enhanced benefits, and alcohol gifts to employees before the union election. The union ultimately lost by a 45-14 vote. An administrative law judge found that the employer’s conduct violated section 8(a)(1) of the Act, which makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their right to organize, and recommended a bargaining order. The NLRB adopted that recommendation, relying on the Cemex framework
On appeal, the Sixth Circuit concluded that the Board’s factual findings were supported by substantial evidence. However, the court rejected the Cemex standard itself, reasoning that it was too sweeping and rule-like to be established through adjudication. In the court’s view, the Board effectively created an entirely new regulatory scheme governing union elections, something that should have been implemented through formal rulemaking procedures, including public notice and comment, not as part of the adjudication of one matter. The court remanded the case back to the NLRB to determine whether a bargaining order is warranted under the traditional Gissel standard or if a rerun election is appropriate.
Takeaways for California Employers
Although the Sixth Circuit rejected Cemex, California employers should not automatically assume the standard no longer applies.
The Sixth Circuit’s ruling is binding only within its jurisdiction (Kentucky, Michigan, Ohio, and Tennessee). The Cemex decision itself is currently pending before the Ninth Circuit. That decision will determine whether the doctrine survives in the western states – including California.Other federal appellate courts may address the issue in the future, which could eventually produce broader changes to the standard.
In the meantime, California employers should continue to exercise caution during union organizing campaigns. Even without Cemex, employer conduct such as threats, coercive interrogations, promises of benefits, or surveillance can still support a bargaining order if it undermines employees’ ability to participate in a fair election.
If your organization receives a union recognition demand or has questions about permissible conduct during an organizing campaign, contact Tashayla Billington or Mark S. Spring in CDF’s Labor Management Relations Practice Group.