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Sixth Circuit pushes back on NLRB’s Cemex strategy: Key limits on bargaining orders

3/12/26

By: Lyndsey Almeida

A recent decision from the U.S. Court of Appeals for the Sixth Circuit significantly limits the National Labor Relations Board’s effort to expand the circumstances under which employers can be forced to recognize and bargain with a union. In Brown‑Forman Corp. d/b/a Woodford Reserve Distillery v. NLRB (6th Cir. Mar. 6, 2026), the court held that the NLRB exceeded its authority when it attempted to rely on the Board’s controversial Cemex framework as the default basis for imposing bargaining orders.

For employers facing union organizing campaigns, the ruling represents an important development that may curb one of the Board’s most aggressive organizing‑related enforcement tools.

Background of the Brown‑Forman dispute

Employees at Brown‑Forman’s Woodford Reserve distillery began exploring union representation after raising concerns about compensation. As the organizing effort progressed and the union obtained authorization cards from a majority of employees, the company announced several workplace changes, including a significant wage increase, expanded compensation opportunities, greater vacation flexibility, and the distribution of free bottles of bourbon shortly before the scheduled election. Support for the union subsequently declined, and the union ultimately lost the election. The NLRB concluded that the timing and scope of these benefits constituted unlawful attempts to influence employee support for the union and ordered the company to recognize and bargain with the union under the framework announced in the Board’s 2023 Cemex decision.

The Sixth Circuit rejects the Cemex bargaining‑order remedy

On appeal, the Sixth Circuit agreed that Brown‑Forman committed unfair labor practices by implementing substantial and well‑timed compensation and benefit changes during the organizing campaign. However, the court rejected the Board’s attempt to impose a bargaining order under the Cemex framework. The court emphasized that the Cemex approach diverged sharply from the Supreme Court’s established framework for when bargaining orders may be used and explained that only the long‑standing standard established in NLRB v. Gissel Packing Co. could guide the Board’s remedy analysis.

Under Gissel, bargaining orders are considered an extraordinary remedy appropriate only when employer misconduct is so severe that a fair election would be unlikely. The Sixth Circuit concluded that the Board had effectively attempted to create a new, broadly applicable rule through adjudication rather than rulemaking, and held that such a sweeping policy shift cannot serve as the basis for imposing bargaining orders. The court therefore vacated the bargaining order and remanded the case to the Board to reconsider the appropriate remedy under valid legal standards.

Practical takeaways for employers

For employers, the decision offers both reassurance and caution. The ruling limits the NLRB’s ability, at least within the Sixth Circuit, to rely on the Cemex framework as an automatic pathway to bargaining orders when elections are set aside due to employer misconduct. At the same time, the court reaffirmed that significant wage increases, new benefits, or other workplace changes announced during an organizing campaign can still constitute unlawful interference with employee rights.

Employers should therefore exercise caution when making compensation or policy changes during union organizing efforts and ensure that any such decisions are consistent with established business practices and supported by legitimate operational reasons. Employers should also monitor developments in other federal appellate courts, as additional rulings could further define, or potentially revive, the scope of the Cemex framework in future labor disputes.

For more information, please contact Lyndsey Almeida at lyndsey.almeida@fmglaw.com or your local FMG attorney.

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