Employers finally have the first serious appellate opinion pushing back on one of the NLRB’s most oppressive recent labor-law theories, namely its enhanced bargaining order framework in Cemex. In Brown-Forman Corp. v. NLRB, the Sixth Circuit rejected the Board’s attempt to use Cemex as the basis for a bargaining order. In practical terms, Cemex said that when a union claimed majority support, the employer had to either recognize the union or promptly pursue an election, and if the employer then committed unfair labor practices serious enough to taint that process, the Board could dismiss the petition and order bargaining without a rerun vote. The Sixth Circuit held that the Board could not lawfully create that framework through adjudication.

The court’s central statement leaves no doubt “Because the Cemex standard was created through an improper exercise of the Board’s adjudicatory authority, it cannot serve as the basis for a bargaining order.” Brown-Forman Corp. v. NLRB, No. 24-2107, slip op. at 3 (6th Cir. Mar. 6, 2026).

Despite this major development, employers should not get careless. The ruling directly governs only in Kentucky, Michigan, Ohio, and Tennessee. Elsewhere, the Board is still likely to press Cemex aggressively until more courts weigh in or the law changes at a broader level.

The story is not over. The original Cemex case remains pending in the Ninth Circuit. If the Ninth Circuit upholds Cemex on the merits including the enhanced bargaining remedy, a circuit split likely sends the case to the Supreme Court.

The case arose from an organizing campaign at Brown-Forman’s Woodford Reserve facility in Kentucky. During the campaign, the employer announced a substantial wage increase, expanded benefits, and later distributed bottles of bourbon before the election. The union ultimately lost the vote by a wide margin.

The Board found that Brown-Forman committed unfair labor practices and issued a bargaining order. The Sixth Circuit did not disturb the unfair labor practice findings. In other words, the employer still lost on the underlying conduct issues even though it succeeded in knocking out the Board’s use of Cemex as the basis for the bargaining order.

That distinction matters. This was not a court blessing aggressive campaign tactics. It was a court rejecting the Board’s attempt to use an invalid legal standard to force bargaining after the election.

For decades, bargaining orders were governed by NLRB v. Gissel Packing Co. Gissel established bargaining orders as an extraordinary remedy. The Gissel Court focused on whether the employer’s unlawful conduct made a fair election unlikely, not whether the Board could bypass elections whenever it disliked the campaign record.

The Sixth Circuit emphasized that principle, noting the long-held understanding that “secret elections are generally the most satisfactory, indeed the preferred, method of ascertaining whether a union has majority support.” Id. at 10 (quoting Gissel).

Cemex shifted the Board away from that model. Instead of treating bargaining orders as a last resort, Cemex moved the Board toward imposing them far more readily once an election was set aside. That change created enormous pressure on employers because ordinary campaign mistakes suddenly carried a much greater risk of being converted into a bargaining order.

The Sixth Circuit’s criticism of Cemex was substantial. The court explained that the Board had relied solely on Cemex rather than on the older Gissel framework when issuing the bargaining order against Brown-Forman.

The court also made clear that Cemex was not a modest refinement to existing labor law standards. It described the Board’s approach as one that “upended over 50 years of precedent” and later noted that Cemex purported to replace the older standard with “a fundamentally different rationale.” Id. at 3, 11.

In the Sixth Circuit’s view, the Board used adjudication to create a broad, forward-looking rule of general applicability, rather than resolving the dispute before it using standards grounded in the facts of that case. That overreach is what made the Cemex framework unusable as the basis for the bargaining order.

At National Labor Relations Advocates, we do not treat union campaigns like improvisation exercises. We help employers prepare early, train supervisors, control campaign messaging, and execute a legal and strategic standard that can withstand scrutiny even under aggressive Board theories.

The NLRA approach matters regardless of whether the governing framework is Gissel, Cemex, or the next variation the Board tries to advance. The strongest defense is not post hoc litigation. It is disciplined campaign execution that prevents a record from being built against the employer in the first place.

That is where effective guidance from experienced labor-relations professionals changes the outcome. Employers who communicate lawfully, move carefully, and maintain campaign discipline place themselves in the best position to protect employee choice and defend the result.

The Sixth Circuit’s Brown-Forman opinion is a major employer-side win. It is the first substantial appellate rejection of the Board’s Cemex bargaining-order framework, and it should be welcomed for exactly that reason.

But smart employers will read the case with discipline, not wishful thinking. The ruling is important. It is not universal. Outside the Sixth Circuit, the legal risk remains real. And even inside the Sixth Circuit, employers still need clean campaign conduct because the underlying unfair labor practice rules remain fully in force.

The right response is not complacency. It is preparation, lawful execution, and experienced guidance.