On March 6, 2026, the United States Court of Appeals for the Sixth Circuit became the first federal appeals court to reject the National Labor Relations Board’s (NLRB or Board) 2023 decision in Cemex Construction Materials Pacific, LLC, in which the NLRB changed the standard for issuing affirmative bargaining orders requiring employers to recognize and bargain with a union even after employees vote against union representation.
In Cemex, the Board expanded the circumstances when it would order employers to bargain with unions that did not win elections, due to the employer violating federal labor law. Under the Cemex standard, when an employer commits an unfair labor practice that requires setting aside an election that the union lost, rather than direct a second, rerun election, the election petition is dismissed and the employer is required to recognize and bargain with the union. Under Cemex, bargaining orders became the default remedy in cases where an employer’s unlawful conduct required that an election be set aside, as opposed to the more limited use of bargaining orders under the previous standard, known as the Gissel standard, where bargaining orders would only be imposed where it was shown that an employer’s unfair labor practices were so serious as to undermine any possibility of a fair rerun election.
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