Alert

Mar 19, 2026

Sixth Circuit Refuses to Enforce Bargaining Order Based Solely on Cemex Standard

In Brown-Forman Corporation v. NLRB, 2026 WL 632679 (March 6, 2026), the Sixth Circuit Court of Appeals refused to enforce a bargaining order by the National Labor Relations Board (“NLRB”) that required the employer to recognize and bargain with a union because it committed unfair labor practices during a union organization campaign that resulted in the union losing the election.

The NLRB upheld the Administrative Law Judge’s opinion that the employer interfered with the unionization efforts by announcing wage increases and modifying benefits prior to the election petition being filed and then gifting bottles of bourbon a week before the election to discourage union support. The NLRB also adopted the ALJ’s recommendation to issue a bargaining order requiring the employer to recognize and bargain with the union relying solely on the NLRB’s decision in Cemex Construction Materials Pacific, LLC. 

A bargaining order resulting from an employer’s unfair labor practices during a union election is considered an extraordinary remedy used sparingly in accordance with a  50 year old doctrine in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), which typically requires the unfair labor practices interfering with the election be based on employer conduct that is “outrageous” and “pervasive” or where a fair rerun election might not be possible. The NLRB historically favors rerun elections to remedy employer misconduct, but Cemex arguably lowered the bar and made a bargaining order a default remedy for alleged employer misconduct during an election that would not be rendered under the Gissel standard. 

The Sixth Circuit held that substantial evidence existed to support the NLRB’s finding that the employer’s conduct before and after the election was unlawful, but it rejected imposing a bargaining order as a remedy solely on Cemex because that case was created through an unlawful exercise of the NLRB’s adjudicatory authority. The Court held the NLRB did not decide Cemex based on the specific facts of that case to resolve the parties’ dispute on a case-by-case basis, but rather its “decades of experience” that amounted to rulemaking through adjudicating a case. The NLRB can create precedent through litigating a case but the precedent typically does not “have more than marginal utility.”  

Cemex was a sea change of the higher Gissel standard to impose a bargaining order and thus was viewed as rulemaking through adjudication that avoided federal requirements that agencies promulgating rules must publish notice of the rule in the Federal Register allowing interested parties to submit comments, and after considering public feedback, promulgating a rule with a statement that includes its basis and purpose. Hence, because Brown-Forman’s bargaining order was based solely on Cemex that the Court felt was an unlawful decision, it refused to enforce the bargaining order.

What does this mean for employers? Brown-Forman confirms that pre-petition and post-petition employer misconduct can be grounds to determine a rerun election or maybe even a bargaining order. The NLRB typically focuses on post-petition conduct during an election campaign but has more recently been considering pre-petition conduct that has been an issue contested by employers. Brown-Forman suggests that debate might be over. And, at least for now, in the Sixth Circuit jurisdiction, the stricter Gissel standard to determine bargaining orders is the law. This should give employers greater flexibility and reduce the risk of a bargaining order when implementing an anti- union election campaign.

If you have questions about how this decision may affect your organization, please contact your Roetzel attorney.