Brown-Forman Decision Rolls Back NLRB's Pro-Union Cemex Policy

Key Takeaways:

• The Sixth Circuit has overturned the NLRB's Cemex decision, returning to the long-standing Gissel standard and limiting the Board's ability to impose bargaining orders. The court found that the NLRB exceeded its authority by creating new policy through case decisions rather than formal rulemaking.
• This decision reduces the immediate risk of bargaining orders being imposed, primarily after a lost union election, by the NLRB, but the legal landscape remains unsettled as other courts may reach different conclusions, and the NLRB may continue to pursue similar policies through other means, including under Gissel.

In a blow to agency rulemaking and pro-union National Labor Relations Board ("NLRB") policy, on March 6, 2026, the U.S. Court of Appeals for the Sixth Circuit dismantled the Biden-era NLRB decision in Cemex Construction Materials Pacific, LLC. That decision had significantly strengthened unions' ability to establish pre-election unfair