March 24, 2026 – The United States Court of Appeals for the Sixth Circuit, in Brown-Forman Corp. v. NLRB, recently held 2-1 that the NLRB’s Cemex bargaining order framework was improperly established through the NLRB’s administrative unfair labor practice adjudication process rather than formal administrative agency rulemaking. The court vacated the Board’s bargaining order and remanded the case for further proceedings. This is the first appellate decision to reject the Cemex standard.

The dispute originated with a Teamsters organizing campaign at Brown-Forman’s Woodford Reserve distillery in Versailles, Kentucky. In 2022, as organizing activity intensified, the company implemented a $4-per-hour across-the-board wage increase—the first time it had provided two raises in a single year—along with expanded pay progression benefits and, one week before the election, bottles of bourbon. The union lost the election 45-14. The NLRB found, and the Sixth Circuit agreed, that these actions were unlawful new benefits timed to undermine the organizing effort. The appellate decision centered on the remedy.

Under the Supreme Court’s longstanding Gissel Packing framework, an NLRB-imposed bargaining order is an extraordinary remedy. The NLRB must find, on a case-specific basis, that employer misconduct was severe enough to make a fair rerun election unlikely. The NLRB’s 2023 Cemex decision substantially changed that analysis. Under Cemex, if employer misconduct warranted setting aside the election results, a bargaining order followed automatically—eliminating any particularized finding of a need for an extraordinary remedy with no assessment of whether a fair rerun election remained possible. The practical consequence was to transform bargaining orders from a remedy of last resort into a near-automatic regulatory imposition that denied employees any right to vote for whether they wanted a union in a rerun.

The divided Sixth Circuit panel found that Cemex was rulemaking in disguise because the NLRB had resolved the bargaining order remedy using the traditional Gissel analysis before announcing the new Cemex framework in a separate section of the opinion. Because the new standard did not resolve the case, its sole function was to establish a prospective rule for other employers who were not parties to the proceeding. That kind of generally applicable policymaking, the court held, belongs to the notice-and-comment rulemaking process under the Administrative Procedure Act (APA), not case-by-case adjudication.

This is an encouraging result for employers, but warrants caution. The ruling binds only the Sixth Circuit—Kentucky, Michigan, Ohio, and Tennessee—and other circuits may reach different conclusions.

If your organization is facing union activity or wants to be prepared when it does, we encourage you to contact one of our Kullman attorneys.