On March 6, 2026, the U.S. Court of Appeals for the Sixth Circuit rejected the National Labor Relations Board’s (NLRB) controversial Biden-era framework—known as the Cemex standard—that empowered the Board to order employers to bargain with unions whenever the Board determined that employer misconduct undermined the election process, regardless of how employees voted.

In the first federal court ruling on the framework’s legality, the Sixth Circuit in Brown-Forman Corp. v. National Labor Relations Board held that in creating the forward-looking Cemex standard, the NLRB improperly exercised its adjudicatory authority when it should have engaged in rulemaking instead. Consequently, the majority held that the Cemex standard cannot serve as the basis for a bargaining order.

• The Sixth Circuit declined to enforce the NLRB’s 2023 Cemex standard, which allowed bargaining orders based on unfair labor practices without regard for the results of secret-ballot elections.
• The court reasoned that the Board engaged in improper rulemaking disguised as adjudication.
• The court emphasized that the Board overstepped its authority by disregarding the longstanding preference for secret-ballot elections “as the barometer of a union’s support among employees.”
• The traditional Gissel standard for bargaining orders remains valid law nationwide; employers that commit serious unfair labor practices may still be ordered to bargain when a fair re-run election is not possible.

The Cemex standard,...

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