Sixth Circuit Rejects NLRB’s Cemex Framework

In a significant development for employers navigating union organizing campaigns, the U.S. Court of Appeals for the Sixth Circuit has rejected the National Labor Relations Board’s 2023 decision in Cemex Construction Materials Pacific, LLC.[1] In its decision in Brown‑Forman Corporation v. NLRB, the Sixth Circuit  held that the Board exceeded its authority by creating a new bargaining‑order framework through adjudication rather than rulemaking.[2] The court vacated the NLRB’s bargaining order and remanded the case for reconsideration under the traditional standard established by the Supreme Court in NLRB v. Gissel Packing Co.[3]

The Sixth Circuit is the first and only federal court of appeals to address the validity of the Cemex framework to date. While the decision significantly limits Cemex within the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee), it does not invalidate the framework nationwide. Nevertheless, the ruling represents an important early appellate check on the Board’s recent approach and introduces meaningful uncertainty regarding the future of Cemex.

In August 2023, the NLRB issued Cemex and dramatically reshaped the process by which unions can obtain recognition. Under Cemex, when a union claims majority support through authorization cards and demands recognition, the employer is required either to voluntarily recognize the union or promptly file a petition for a Board‑conducted election.

If the employer chooses to file a petition for an election but commits any unfair labor practice that could affect the election’s fairness, the Board can issue a bargaining order requiring the employer to recognize and bargain with the union, even if the union lost the election. In practice, Cemex lowered the threshold for imposing bargaining orders and displaced decades of precedent applying the Supreme Court’s Gissel standard, which treated bargaining orders as an extraordinary remedy reserved for severe cases of employer misconduct.

In Brown‑Forman, a case arising from a union organizing campaign at the Woodford Reserve distillery in Kentucky, the Sixth Circuit upheld the Board’s findings that Brown‑Forman committed unfair labor practices during the organizing campaign; however, it rejected the Board’s reliance on Cemex as the sole basis for imposing a bargaining order after the union lost the election.

The court concluded that the Board improperly used adjudication to create a broadly applicable policy rather than to resolve the specific dispute before it. In particular, the court stated that the Board expressly declined to analyze whether a bargaining order was warranted under the traditional standard articulated in the Supreme Court decision in Gissel and instead relied exclusively on the Cemex framework. Because the bargaining order rested entirely on that framework, the Sixth Circuit vacated the order and remanded the case to the NLRB for further proceedings.

Because Cemex was invalidly promulgated, the court directed the Board to reconsider the appropriate remedy under Gissel, under which bargaining orders remain an extraordinary remedy appropriate only where employer misconduct is so severe or pervasive that a fair election or rerun election is unlikely.

Notably, the Sixth Circuit’s decision applies only within that circuit (Kentucky, Michigan, Ohio, and Tennessee) and does not prevent the NLRB from continuing to apply Cemex elsewhere. No other court of appeals has yet ruled on the framework’s validity, and Cemex therefore remains formally in effect outside the Sixth Circuit for now.

The Sixth Circuit’s decision places Cemex on uncertain footing. Other courts of appeals may soon weigh in, potentially agreeing with or rejecting the Sixth Circuit’s reasoning. If divergent rulings emerge, Supreme Court review would become increasingly likely.

Separately, the case has been remanded to the NLRB, which must now reconsider the appropriate remedy under Gissel. More broadly, the Board’s future approach to Cemex remains uncertain. While recent reporting indicates that at least one Republican Board member has stated a general preference for maintaining precedent absent three aligned votes[4], more recent statements have stopped short of categorically foreclosing reconsideration of precedent by a two‑member majority.[5] As a result, although no immediate Board action is assured, Cemex could ultimately be narrowed or revisited through future Board decisions, even in the absence of additional appellate rulings.

Despite the Sixth Circuit’s rejection of Cemex, union organizing activity remains elevated, and bargaining orders remain a potential remedy under Gissel.

Employers should continue to exercise caution during organizing campaigns. Even without Cemex, unlawful conduct (such as threats, coercive interrogations, promises of benefits, or surveillance) can still support a bargaining order where it undermines the possibility of a fair election.

When faced with union recognition demands, employers should carefully evaluate authorization cards, consult counsel promptly, and consider timely whether to pursue a Board‑conducted election.

Employers operating in multiple states should closely monitor developments in other circuits and at the Board level. Until further guidance emerges, the legal landscape governing bargaining orders will remain unsettled.

The Sixth Circuit’s decision represents the first appellate rejection of the NLRB’s Cemex framework and a significant constraint on the Board’s ability to reshape union‑recognition rules through adjudication. While Cemex remains in effect outside the Sixth Circuit, its long‑term viability is now uncertain.

Employers should continue to approach organizing campaigns with care, assume heightened scrutiny of their conduct, and stay attuned to further developments from the courts and the NLRB.

Please contact Kevin Terry, Kris Hanson, or any member of Michael Best’s Labor‑Management Relations team to discuss these developments and how they may affect your organization.

[1] 372 NLRB No. 130 (2023).

[2] Nos. 24‑2107 & 25‑1060, ___ F.4th ___ (6th Cir. Mar. 6, 2026).

[3] 395 U.S. 575 (1969).

[4] Currently, the Board consists of two Republican members and one Democratic member.

[5] Ted Parker, News & Commentary: March 9, 2026, OnLabor (Mar. 9, 2026), https://onlabor.org/march-9-2026/.