Sixth Circuit Vacates NLRB Bargaining Order, Curtails Cemex Standard

Overview

• The court, in a 2–1 ruling, upheld findings that Brown-Forman committed pre‑election unfair labor practices but vacated the Board’s bargaining order and remanded the case.
• Judges found the NLRB exceeded its adjudicatory authority by creating the Cemex bargaining framework as a rule of general applicability without notice‑and‑comment rulemaking.
• The panel declared the Cemex bargaining standard has no precedential value in the Sixth Circuit and cannot serve as the basis for future orders there.
• The ruling returns the circuit to the Gissel standard for bargaining orders, preserves the preference for secret‑ballot elections, and leaves Gissel‑based remedies available in extreme cases.
• Outside Kentucky, Michigan, Ohio, and Tennessee, Cemex remains Board precedent for now, with further litigation pending and potential Board or rulemaking responses uncertain.