Sixth Circuit Dumps NLRB’s Cemex Ruling to Police Elections

A federal appeals court rejected the NLRB’s landmark Biden-era ruling that aimed to discourage employers from violating labor law before union elections.

The National Labor Relations Board overstepped its authority in 2023’s Cemex Construction Materials Pacific LLC, which was a rulemaking disguised as the adjudication of a dispute, a divided US Court of Appeals for the Sixth Circuit held Friday in a decision involving a Kentucky bourbon distillery.

The board had relied on Cemex to order Brown-Forman Corp., which does business as Woodford Reserve Distillery, to bargain with an International Brotherhood of Teamsters affiliate that lost a representation election.

Beyond negating Cemex in the Sixth Circuit, the court’s decision strikes a blow at the NLRB’s fundamental authority to set national labor policy through individual case rulings.

While the board is expected to overturn Cemex after its Republican majority gets a crucial third member, the current members recently emphasized their preference for setting policy through case adjudication rather than rarely used rulemaking power.

Under Cemex, the NLRB can impose a bargaining order when an employer that was presented with a valid demand for union recognition commits unfair labor practices in the runup to a vote.

The Biden-era board found that Brown-Forman tried to undermine support for the union by giving $4-per-hour wage increases and free bottles of bourbon, making it easier for new employees to qualify for annual pay boosts, and rescinding a policy requiring workers to use vacation days during an annual end-of-the-year shutdown.

The Sixth Circuit upheld the unfair labor practice findings, but vacated the Cemex bargaining order and sent the case back to the board so it can “start fresh with the proper standards in mind.”

‘Quiet Part Out Loud’

The two judges in the majority—David McKeague and Richard Griffin, both George W. Bush appointees— invoked the US Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo in its ruling that Cemex was outside the NLRB’s authority to decide cases.

“It created a new standard for issuing future bargaining orders that was neither derived from the case-specific facts nor in furtherance of fashioning a remedy that resolved the parties’ dispute,” McKeague wrote.

Both of those perceived flaws with Cemex appeared to stem from it approving two types of bargaining orders: one based on its new framework, and the other under its longstanding standard that the Supreme Court endorsed with its 1969 decision in NLRB v. Gissel Packing Co.

The board “admitted” that it was making a new standard based not on the facts of the case, but on its experience that Gissel is inadequate—despite also ordering a Gissel bargaining order, the Sixth Circuit said.

The Gissel order also showed that the creation of the Cemex standard wasn’t necessary to resolve the case at hand, as the NLRB itself acknowledged that applying it didn’t impact any ULP findings or remedies, the court said.

“The Cemex Board said the quiet part out loud, proclaiming that the value in the new standard was its deterrent effect on future, hypothetical preelection violations of the Act,” according to the majority opinion.

By deciding the case based on the NLRB exceeding its adjudicatory authority, the court said it would “leave for another day” the question of whether Cemex is a valid interpretation of the National Labor Relations Act.

Judge Andre Mathis, a Biden appointee, dissented. The board had the power to create the Cemex standard in case adjudication, he said.

“The majority seeks to rein in the Board’s policymaking authority, but that job does not belong to this court,” Mathis said. “Congress gave the Board the power to make policy through adjudication, and the Supreme Court has blessed Congress’s decision.”

Brown-Forman was represented by Smith & Smith. The NLRB was represented by agency lawyers.

The case is Brown-Forman Corp. v. NLRB, 6th Cir., No. 24-02107, 3/7/26