The Sixth Circuit Questions Cemex: What Employers Need to Know

On Friday, the Sixth Circuit issued a decision calling into question the future of the National Labor Relation Board's (NLRB) landmark Cemex decision. The decision in Brown-Forman Corp., v. NLRB, decided by a majority composed of two George W. Bush-appointed federal judges, concluded that the Cemex standard was created through an improper exercise of the NLRB's adjudicatory authority.

Brown-Forman operates a facility in Versailles, Kentucky, that distills, bottles, and distributes Woodford Reserve Bourbon. In early 2022, a group of Brown-Forman employees began organizing efforts with the International Brotherhood of Teamsters. While support for organizing was initially low, the organizer's efforts gained traction after Brown-Forman announced a modest $1-per-hour raise for all employees. Shortly thereafter, organizers filed their petition for an election. Concerned with the momentum the organizers were gaining, Brown-Forman announced a new $4-per-hour raise, announced that it would be extending its pay progression and merit-based salary increase policy to new and recently promoted employees, and offered more flexibility for employees to use time off around the December holidays. During the campaign, the new $4-per-hour raise went into effect, and one week before the election, Brown-Forman gifted employees bottles of bourbon. The organizing campaign failed when the union received only 14 votes in favor of unionizing to the company's 45 votes in opposition. After the election, the union filed objections to the election results, asserting that the company and its managers committed unfair labor practices by unlawfully providing enhanced benefits to employees after the representation petition was filed, which interfered with the union election.

An Administrative Law Judge (ALJ) agreed, and concluded that Brown-Forman committed unfair labor practices. Relying on the NLRB's decisions in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 and NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the ALJ recommended that the NLRB issue a bargaining order that would direct Brown-Forman to recognize and negotiate with the union. The NLRB agreed with the ALJ; however, in issuing the bargaining order, the Board relied solely on the NLRB's Cemex standard. Brown-Forman's petition for review gave the Sixth Circuit its first opportunity to review the 2023 Cemex decision.

In Cemex, the NLRB announced a new framework for determining when employers are required to bargain with unions without a representation election. Under the Cemex framework, when a union requests recognition on the basis that a majority of employees in a bargaining unit have designated the union as their representative, an employer must either decide to recognize and bargain with the union or promptly file an RM petition for an election. If an employer who seeks an election commits any unfair labor practice during the campaign, rather than re-running the election, the NLRB can issue a "bargaining order," requiring the employer to recognize and bargain with the union. This is an extraordinary remedy because the secret ballot election is generally viewed as the fairest way to gauge employee support for unionization.

The Sixth Circuit determined that Brown-Forman did commit unfair labor practices during the campaign; however, the Cemex standard under which the Board issued the bargaining order was created through an improper exercise of the Board's adjudicatory authority. Therefore, the Court concluded that Cemex could not serve as the basis for the bargaining order. The Court sent the matter back to the Board with directions to "analyze this case consistent with its statutory authority."

What the NLRB will do with the Sixth Circuit's directive remains to be seen, including whether the Board takes the opportunity to revisit Cemex as a whole. The other aspects of the Cemex decision, such as the quickening of the timeline for elections, were left unaddressed by the Sixth Circuit, which stated that these are questions "for another day."

The NLRB, which has room for five members, is currently composed of three members: James Murphy and Scott Mayer, who constitute the Board's Republican majority, and David Prouty, the Board's sole Democrat. The quorum, finally created in January 2026 following the Senate's Confirmation of Mayer and Murphy, restored the Board's ability to act after being stalled for much of 2025. While the three-member Board is equipped to act, most commentators suggest that the Board will wait for a three-member consensus before upsetting any major precedent.

Calfee's Labor and Employment Group closely monitors NLRB decisions and federal decisions interpreting the same. We are available to assist in addressing any organizing efforts and with compliance with the National Labor Relations Act, which is overseen by the NLRB.

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