Sixth Circuit Rejects NLRB Standard That Made Union Recognition Without an Election More Likely

March 12, 2026

 

What's New

The Sixth Circuit rejected the NLRB’s Cemex framework, which had increased the likelihood that employers would be ordered to recognize and bargain with a union based on authorization cards rather than the results of a secret ballot election. In Brown-Forman Corp. v. NLRB, the court held that Cemex effectively amounted to rulemaking “under the guise of an adjudication” and exceeded the Board’s authority, remanding the case for further proceedings.

What It Means

Historically, the NLRB treated bargaining orders without an election as an extraordinary remedy—typically reserved for situations where employer misconduct made a fair rerun election impossible. Cemex shifted that approach by increasing the circumstances in which the Board could impose a bargaining order and by raising the stakes of election-related unfair labor practice allegations.

Going forward, the now Republican-majority Board has several options, including returning to a more traditional remedial analysis or revisiting, and potentially reversing, Cemex. Separately, additional challenges to Cemex remain pending in other federal courts of appeals and before the Board, so further developments are likely.

What You Should Do

If you’re attending CWC’s Workplace Policy Conference, plan to use the Open Forum sessions to discuss the practical implications of the decision while other Cemex challenges work their way through the courts.





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