Hunton Employment & Labor Perspectives

The National Labor Relations Board’s 2023 decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (Aug. 25, 2023), significantly altered the union-recognition landscape by making it easier for the Board to impose bargaining orders after alleged employer misconduct during organizing campaigns, departing from the more demanding framework that had previously governed for more than 50 years. Recent decisions from the Sixth and Ninth Circuit Courts of Appeals have now put Cemex squarely in the spotlight—rejecting it in one case, sidestepping it in another, and leaving employers nationwide with continued uncertainty over how to navigate an unsettled union-election landscape.

The NLRB’s 2023 Cemex Decision

The NLRB’s 2023 decision in Cemex changed the standards governing union recognition by giving the Board a more aggressive path to impose bargaining orders after alleged employer misconduct during organizing campaigns. Before Cemex, the Board’s authority to issue remedial bargaining orders was governed by the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Under that standard, the remedy was available only where (1) the union had demonstrated majority support, and (2) the employer’s misconduct was so serious that traditional remedies, such as a rerun election, were unlikely to protect employee free choice.  

Under Cemex, when a union claims majority support and demands recognition, the employer generally must either recognize the union or file a petition for a Board election. If the employer then commits unfair labor practices that would warrant setting aside the election, the Board may order the employer to recognize and bargain with the union. The Board justified that shift by stating that the Gissel framework had produced “persistent failures” in securing recognition after employees had designated a union as their representative and that the newly formulated Cemex standard would “deter employer misbehavior” in the period before a Board election.

More than two years after the NLRB issued Cemex, two recent federal court of appeals decisions have begun to clarify the status of the Board’s new standard. On March 6, 2026, the Sixth Circuit rejected the Board’s Cemex bargaining-order framework in Brown-Forman Corp. v. NLRB, 169 F.4th 646 (6th Cir. 2026).  A little over a month later, on April 21, 2026, the Ninth Circuit enforced the bargaining order in the underlying Cemex case, but declined to decide whether the Board’s new framework is valid.

The Sixth Circuit’s Decision

The Sixth Circuit’s decision arose from a Teamsters campaign at Brown-Forman Corporation’s Woodford Reserve Distillery in Kentucky, where management granted a $4-per-hour raise, expanded merit increases, implemented a more flexible vacation policy, and gave employees bottles of bourbon before the election. The Board found those actions unlawful and, relying solely on the Cemex standard, ordered Brown-Forman to recognize and bargain with the union, even though the union lost the election by a wide margin of 45-14.  

The Sixth Circuit upheld the unfair labor practice findings but vacated the bargaining order due to the Board’s reliance on the Cemex standard to justify the remedy. The court held that the Board exceeded its adjudicatory authority by using Cemex to create a “general rule of broad applicability” through case adjudication rather than rulemaking. Citing longstanding Supreme Court precedents, the court stressed that administrative agencies, such as the NLRB, are prohibited from crafting such general rules through adjudication unless those rules are necessary to resolve the specific dispute at hand. 

The court emphasized that the Board had concluded in Cemex itself that a bargaining order was justified under Gissel, which meant the new Cemex standard was unnecessary to resolve that case.  Accordingly, the Sixth Circuit held that the Cemex standard was “improperly promulgated” and “cannot serve as the basis for future orders.”

The Ninth Circuit’s Decision

The Ninth Circuit took a narrower path in the underlying Cemex appeal.  It enforced the Board’s bargaining order, but expressly declined to decide whether the Board’s new Cemex standard is valid. Instead, the Ninth Circuit affirmed the bargaining order under Gissel alone. The court found that Cemex had committed serious “hallmark” unfair labor practices during the organizing campaign, including threats of closure, threats of job loss, and the discharge of a prominent union supporter.

The court noted the Board’s finding, which Cemex did not dispute, that the union had a majority status. It further found that evidence supported the Board’s conclusion that traditional remedies would not sufficiently erase the coercive effects of the employer’s unfair labor practices to permit a fair rerun election, emphasizing the Board’s finding that the employer’s violations did not stem from isolated “mistakes of a few managers,” but “rather from a carefully crafted corporate strategy.” Because the bargaining order could be sustained under settled Gissel principles, the Ninth Circuit said it did not need to reach the separate dispute over the retroactive application or validity of the Cemex standard.

Judge Clifton dissented from the court’s enforcement of the Board’s bargaining order, not because he disagreed that the employer committed unfair labor practices or that the election results could be set aside, but because he concluded the Board had not adequately justified the far more extraordinary remedy of a bargaining order under Gissel. He opined that the Board’s decision to announce and retroactively apply its new Cemex standard was a sign that the agency believed it was “on thin ice” under Gissel alone, remarking that “[c]hanging the rules in the middle of a game implied recognition that the goal could not properly be reached otherwise.” He further emphasized that the Board’s creation of the new Cemex standard was “entirely unnecessary to resolve this case,” noting his agreement with the reasoning of the Sixth Circuit in its recent Brown-Forman decision.

What This Means for Employers

Taken together, the decisions give employers some information, but not much certainty. On the one hand, the Sixth Circuit decision provides employers with a strong basis to challenge bargaining orders imposed under Cemex, particularly on the theory that the Board cannot use adjudication to adopt a sweeping new bargaining-order standard.  On the other hand, the Ninth Circuit’s decision is a reminder that traditional Gissel bargaining orders remain fully available where employer misconduct is serious enough to make a fair rerun election unlikely. The Ninth Circuit’s decision not to address whether the Board may announce and retroactively apply the Cemex standard through adjudication creates tension with the Sixth Circuit’s ruling and could set the stage for a circuit split in the near future.

Whether, and to what extent, the Board will continue to defend Cemex outside the Sixth Circuit remains to be seen. Recent appellate briefing and related commentary suggest the Board has continued to defend the framework and has argued the Sixth Circuit’s decision was wrongly decided. At the same time, Cemex has appeared at the top of many lists of Biden-era Board decisions that commentators expect the current administration to revisit or reverse. If the President’s recent nomination of James Macy to fill a vacancy on the NLRB is confirmed, the Board could soon have a functioning three-member Republican majority with the votes to overrule Cemex.

For now, employers facing organizing activity should prepare for litigation under both Gissel and Cemex, while preserving arguments against the validity of the Board’s newer framework. Employers should also continue to monitor this area closely, as further developments are likely to come soon—whether through additional appellate decisions, possible Supreme Court review, or a change in direction from the Board itself.