In March 2026, the Sixth Circuit Court of Appeals dealt a significant blow to the National Labor Relations Board’s Cemex framework for issuing bargaining orders. Originally adopted in 2023, Cemex dramatically expanded the Board’s power by discarding more than 50 years of Supreme Court precedent. The Sixth Circuit rejected that move, ruling that the Board overstepped its authority by effectively creating new rules through case decisions rather than formal rulemaking.
Despite that rejection, the Board is pressing on. Less than a month later, the Board told the Ninth Circuit—where Cemex itself is still under review—that the Sixth Circuit got it wrong. We now know that until courts definitively shut it down, the Board intends to keep applying Cemex.
The Cemex Framework
As explained in Dinsmore’s March 13, 2026 Labor Alert, these cases control when the Board can force an employer to bargain with a union after election-related misconduct.
Up until recently, the Supreme Court’s 1969 decision in NLRB v. Gissel Packing Co., controlled. Under Gissel, the Board could order bargaining only if:
- The union previously had majority support, and
- The employer’s misconduct was so serious that a fair rerun election was unlikely.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The Supreme Court’s Gissel decision – which empowered the Board to issue a bargaining order only when other remedies (such as a rerun election) were insufficient to protect employees’ choice to unionize – served as the Board’s bargaining-order standard for more than 50 years.
Cemex changed all of that. In 2023, the Board announced it would “no longer look to Gissel,” eliminating the requirement to show that a fair election could not be held. Cemex Constr. Mater. Pac., LLC, 372 NLRB No. 130. In practical terms, Cemex made bargaining orders far easier to impose, even where traditional remedies—like rerun elections—might still work.
The Sixth Circuit Rejects Cemex in March 2026
That expansion came to a head in Brown‑Forman Corp. v. NLRB. There, the company gave employees raises and free bourbon shortly before a union election.
The union lost and filed unfair labor practice charges. The Board agreed with the union and—relying solely on Cemex—ordered Brown‑Forman to recognize and bargain with the union without even considering whether a new election could be fair. See 373 NLRB No. 145. The company appealed to the Sixth Circuit.
On March 6, 2026, the Sixth Circuit issued a decision rejecting the Cemex framework in Brown-Forman Corp. v. NLRB, 169 F.4th 646 (6th Cir. 2025). The Sixth Circuit upheld the Board’s finding that Brown-Forman had unlawfully interfered with the election, reasoning the company’s offering of benefits shortly before the election was designed to discourage union membership. The Court held that, when adopting Cemex, the Board engaged in improper rulemaking through adjudication. As a result, the Sixth Circuit said it simply “cannot enforce” the order and sent the case back to the Board.
The Board Defends Cemex to the Ninth Circuit; Argues the Sixth Circuit Got it Wrong
Cemex is currently on appeal in the Ninth Circuit. In a March 10, 2026 filing, the employer argued that the Sixth Circuit’s decision confirms that Cemex exceeds the Board’s adjudicatory powers. The Board responded, calling the Sixth Circuit’s analysis “flawed.” According to the Board, the Sixth Circuit wrongly limited the agency’s ability to shape labor policy through case decisions and misunderstood how the bargaining order in Cemex was tied to the facts. The Board urged the Ninth Circuit to uphold and enforce Cemex as consistent with Supreme Court precedent.
Takeaway
The Board’s defense of Cemex makes one thing clear: it has no plans to abandon the framework anytime soon. Until courts definitively resolve the issue, employers should expect the Board to continue pushing Cemex—particularly outside the Sixth Circuit. With the Sixth Circuit rejecting Cemex and the Ninth Circuit soon weighing in, the stage is set for a potential circuit split. If that happens, Supreme Court review becomes increasingly likely.
In the meantime, the legal landscape remains unsettled for employers facing union elections. Dinsmore’s labor and employment attorneys will continue tracking these developments closely and provide updates as the courts weigh the future of Cemex.