Sixth Circuit Rejects Cemex, Issuing Major Blow to NLRB’s Authority to Create Policy Through Adjudication

By Ian Martin

On Friday, March 6, 2026, in Brown-Forman Corp. v. National Labor Relations Board, a three-judge panel on the Sixth Circuit Court of Appeals ruled on whether the National Labor Relations Board (NLRB) erred in issuing a bargaining order after applying only the Cemex standard to the case. This was the first time the court reviewed an NLRB decision in which a bargaining order was based solely on Cemex.

In 2023, in Cemex Construction Materials Pacific, LLC., the NLRB used its adjudicatory authority to modify its policy on issuing bargaining orders without first conducting a new election. Under Cemex, when a union requests recognition by showing more than 50% interest through authorization cards, the employer must either recognize that union or file for an election. If, in the lead-up to the election, the employer engages in unfair labor practices, the NLRB may step in and order the employer to recognize the union without an election.

Cemex significantly expanded the circumstances in which the NLRB would issue a bargaining order in the absence of a majority vote in an election, which, prior to then, had been governed by the standard set forth in NLRB v. Gissel Packing Co. Inc. Under Gissel, the NLRB ordered employers to bargain only when it determined that the scope of their unfair labor practices made it unlikely that traditional remedies could ensure a fair election in the future. Cemex abandoned that requirement and instead required only that the unfair labor practices be significant and that they be found to have undermined the organizing campaign and election.

In May 2022, Brown-Forman, the parent company of Woodford Reserve Distillery, called for an election after a local union of the Teamsters notified it that the union had obtained authorization cards from a majority of its employees. One week before the election, Brown-Forman committed several acts of election interference in violation of the National Labor Relations Act. The subsequent election failed, with only 14 votes cast in favor of the union and 45 against. In light of the company’s unfair labor practices, the NLRB issued a bargaining order under the Cemex standard alone, rather than under both Cemex and Gissel, as it has done in many other cases.

On appeal to the Sixth Circuit, Brown-Forman argued, among other things, that the NLRB acted outside the scope of its remedial authority when it established the Cemex standard. Additionally, they stated that the NLRB created the Cemex standard through an improper exercise of its adjudicatory authority and that it erred in retroactively applying it to the facts of the Brown-Forman case. A three-judge panel of the court agreed, holding that the board created the Cemex standard through improper use of its adjudicatory authority. Therefore, it could not serve as the basis for issuing a bargaining order. The court reasoned that the board’s adjudicatory authority is primarily intended to resolve disputes between parties, thereby setting precedent for future matters, rather than to create broad, general rules for future application. The court explained that, in Cemex, the NLRB did not base its decision on case-specific facts but rather on general observations with no nexus between the facts of the case and the rule.

In a thoughtful dissent, Judge Mathis argued that the NLRB has long exercised its authority to create and change its policies through adjudication. He further argued that this process of creating a standard that is then applied to future litigation is the basic idea of precedent and rulemaking. Historically, agencies have been given wide latitude to create policy through either rulemaking or adjudication. Judge Mathis pushed back on the majority’s claim of improper procedure, stating that the board appropriately made its determination in Cemex through reasoned decision-making based on the facts before it.

Two key takeaways from this decision are that changes to NLRB policy through adjudication face an uphill climb in the Sixth Circuit, at least for now, and that unions should push NLRB Regional Offices to rely on both Cemex and Gissel when issuing complaints seeking bargaining orders. The NLRB has requested en banc review by the full Sixth Circuit, so stay tuned.