On March 6, 2026, the U.S. Court of Appeals for the Sixth Circuit issued its decision in Brown-Forman Corp. v. NLRB—marking the first time a federal appellate court has rejected the NLRB’s Cemex bargaining order framework. Brown-Forman arose from a union organizing campaign that began “brewing” at a Kentucky bourbon distillery, where management moved quickly to “bottle” the momentum; offering increased wages, benefits and (shortly before the election) free bourbon. The union lost the vote by a wide margin and, thereafter, filed objections. An Administrative Law Judge (“ALJ”) found that the company committed multiple unfair labor practices. The NLRB then issued a bargaining order under its 2023 Cemex framework, requiring the employer to recognize and bargain with the union without a rerun election. On appeal, the Sixth Circuit refused to enforce the NLRB’s order—effectively characterizing it as “rulemaking under the guise of an adjudication.” To be clear, Brown-Forman does not overturn Cemex nationwide entirely. The NLRB regions will likely continue applying the Cemex framework until the Supreme Court or the Board itself reverses course. Regardless, this decision represents the first appellate crack in the Cemex edifice and offers employers a powerful roadmap for challenging Cemex-based bargaining orders.
Background
In Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), the Board fundamentally altered how unions qualify as the exclusive bargaining representative for a bargaining unit. Under Cemex, an employer confronted with a demand for recognition must, within two weeks, either (a) voluntarily recognize and bargain with the union or (b) file an election petition to test the union’s majority status. Cemex replaced the longstanding Gissel standard for issuing bargaining orders. Under the new framework, if the Board finds an employer committed unfair labor practices that undermine the possibility of a free, fair, and timely election, the Board will dismiss the election proceedings and issue a bargaining order as a default remedy. Since Cemex was decided, numerous employers have challenged this framework. Brown-Forman Corp. v. NLRB was one such challenge.
In February 2022, employees at Brown-Forman Corporation’s Woodford Reserve bourbon distillery in Kentucky began contacting the International Brotherhood of Teamsters about organizing a union. As the organizing campaign gained momentum, Brown-Forman announced a series of compensation and benefit increases: (i) a $4-per-hour across-the-board raise, (ii) adjusted pay progression and merit increases, and (iii) allowing employees to save vacation hours around the holidays. The company also held mandatory meetings with employees to discuss unionization and, shortly before the vote, gifted employees bottles of bourbon. The union lost the election decisively, 45 to 14. The union filed objections, alleging the company committed multiple unfair labor practices that interfered with the election. An ALJ agreed, finding that Brown-Forman violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.
The Board agreed and set aside the election. Relying solely on the Cemex standard—and explicitly declining to apply the longstanding Gissel framework—the Board issued a bargaining order requiring Brown-Forman to recognize and bargain with the union, without ordering a rerun election. The company appealed to the Sixth Circuit.
The Sixth Circuit’s Holding
As a threshold matter, the Sixth Circuit found the Board’s determination that Brown-Forman engaged in unfair labor practices was supported by substantial evidence. In the court’s view, the timing and nature of the company’s benefit enhancements—granting employees the very improvements they sought after management became aware of increasing union activity—demonstrated an intent to discourage unionization and interfere with employees’ protected rights.
Notwithstanding those findings, the court declined to enforce the bargaining order. In doing so, the Sixth Circuit concluded that the Board’s Cemex decision amounted to rulemaking conducted under the guise of adjudication. Central to the court’s reasoning was the fact that the Board, in Cemex, had already resolved the underlying dispute using the established Gissel framework—only to then craft a wholly new, prospective standard premised on the Board’s accumulated institutional experience rather than the particular facts of the case at hand.
Recognizing that the Board retains authority to shape policy through case-by-case adjudication, the Sixth Circuit held that power does not extend to establishing rigid, generally applicable rules. The court determined that the Cemex framework was crafted principally to deter prospective employer misconduct across future cases, rather than to address the particular violations at issue before the Board.
On that basis, the Sixth Circuit granted the company’s petition for review, denied the Board’s cross-petition seeking enforcement, and remanded the matter for further proceedings in accordance with the court’s opinion.
The court’s decision was not unanimous. Judge Mathis, a Biden appointee, filed a dissent contending that the Board acted within its policymaking authority in adopting the Cemex standard through adjudication. The dissent maintained that Congress vested the Board with broad latitude to choose between rulemaking and adjudication as vehicles for policy development, and criticized the majority for elevating procedural form over administrative practicality. In Judge Mathis’s view, the bargaining order should have been enforced, as the Cemex framework fell squarely within the Board’s remedial powers and aligned with the Supreme Court’s reasoning in Gissel.
Key Takeaways for Employers
- Cemex Is Limited—and Gissel Governs—in the Sixth Circuit. Brown-Forman reaffirms that the traditional Gissel framework continues to govern the issuance of bargaining orders within its jurisdiction (Kentucky, Michigan, Ohio, and Tennessee), giving employers strong grounds to challenge orders that rely solely on the Cemex standard. Under Gissel, the Board must first determine whether the employer’s misconduct was sufficiently serious to preclude a fair rerun election—a higher threshold that affords employers greater protection. Much like a bourbon that hasn’t properly aged, Cemex may not hold up under appellate scrutiny—and this decision provides a useful roadmap for employers in other circuits looking to contest Cemex-based bargaining orders.
- Compensation Changes During Campaigns Remain High-Risk. Regardless of the Brown-Forman outcome, out-of-cycle raises, new benefits, and other enhancements implemented during a campaign will be closely scrutinized. Brown-Forman’s experience underscores the point: the timing and circumstances surrounding the company’s benefit adjustments were central to the court’s unfair labor practice analysis. Employers contemplating any changes to wages, benefits, or working conditions during an organizing campaign should ensure that independent, pre-existing business justifications are thoroughly documented before those changes are announced or implemented, and should use disciplined, neutral internal messaging throughout.
- Internal Communications Can Be Key Evidence. In Brown-Forman, internal emails and other communications served as high-proof evidence in evaluating the employer’s intent and the lawfulness of its pay actions. Employers should use disciplined, neutral messaging and ensure documentation is consistent with legitimate business reasons.
- Keep an Eye on the Ninth Circuit. A Potential Circuit Split Is on Tap: Cemex remains under review in the Ninth Circuit, and it is unclear whether that court will follow the Sixth Circuit’s reasoning. A split would increase the likelihood of Supreme Court review—and could determine whether Cemex has a future or gets shelved for good.
- The Ruling Could Open the Door to Broader Challenges. The Sixth Circuit’s core holding—that the Board overstepped by using adjudication to announce a sweeping, forward-looking rule—may have implications well beyond Cemex. In recent years, the Board has relied on adjudication to reshape a number of labor law doctrines. The reasoning in Brown-Forman could embolden employers to challenge other Board-made standards that were adopted through case decisions rather than formal rulemaking, particularly where those standards impose rigid, generally applicable requirements untethered to the facts of the underlying dispute.
- Employers Outside the Sixth Circuit Should Still Act Quickly on Election Petitions. While Cemex has been dealt a significant blow in the Sixth Circuit, it remains operative in other jurisdictions unless and until additional circuits follow suit or the Board reverses course. Employers who receive a union demand for recognition outside the Sixth Circuit should continue to comply with Cemex’s requirement to file an election petition within two weeks—failure to do so may still result in a bargaining order without a vote.