Appeals Court Questions NLRB Cemex Bargaining Order Standard

On December 11, 2025, a three judge panel of the U.S. Court of Appeals for the Sixth Circuit heard argument in Brown Forman Corporation v. National Labor Relations Board and pressed sharp questions about the NLRB’s 2023 Cemex decision. The panel, comprising Judges Jennifer Sung and Gabriel Sanchez, both Biden appointees, and Judge Richard Clifton, a George W. Bush appointee, focused on whether the Board exceeded its statutory authority and whether Cemex properly departs from the Supreme Court’s Gissel standard established in 1969.

Cemex allows the Board under certain circumstances to set aside election results and enter remedial bargaining orders requiring employers to bargain with unions that lost elections at least partly because of unlawful employer conduct during the election period. That framework marks a departure from prior practice in which bargaining orders were reserved for the most egregious unfair labor practices and were governed by the Gissel remedial standard.

During argument, Judges Sung and Sanchez tested counsel on the scope of judicial review and remedial discretion, indicating openness to the Board’s view that severe and widespread misconduct can justify bargaining relief even in cases that may be close on the facts. They emphasized that the court’s review is for abuse of discretion and questioned whether the previous standard incentivized employer misconduct by leaving rerun elections as an easier route for employers who had interfered with the process.

Judge Clifton was more readily skeptical of key elements of Cemex. He questioned whether the Board could adopt that new framework without formal rulemaking procedures and challenged the Board’s characterization of the administrative law judge’s reasoning in the underlying proceedings. He also raised doubts about a portion of Cemex that effectively requires employers to initiate representation case petitions in response to a demand for voluntary recognition, calling it "clearly not the law" for the Board to issue "bargaining order(s) after a failure to respond [to a demand for recognition]."

The Sixth Circuit hearing follows related litigation in other circuits and lower courts that has produced mixed reactions. Ninth Circuit judges have reportedly expressed skepticism about applying Cemex, and the D.C. Circuit panel in NP Red Rock LLC v. NLRB has indicated a preference for applying Gissel in appropriate cases, with Judge Florence Pan calling it "superfluous" to invoke Cemex if the Gissel standard is satisfied. Lower tribunals have already applied the Cemex framework. An administrative law judge issued a remedial bargaining order in an INSA case on September 21, 2023. On May 14, 2024, the U.S. District Court for the District of Massachusetts granted the Board injunctive relief, set aside an election result and imposed a bargaining order under a Cemex theory.

Business groups have mounted legal challenges and filed amicus briefs. The National Federation of Independent Business joined an April 24, 2025 brief warning that Cemex "violates" Gissel and could be disruptive for small firms. NFIB Small Business Legal Center executive Beth Milito described Cemex as "an unprecedented license to disrupt small businesses." The NLRB has argued that stronger remedial tools deter employer misconduct that skews elections, and acting General Counsel Bill Cowen has urged courts to uphold Cemex even as some observers question why he supports a standard that a future GOP majority Board could overrule.

Appellate judges’ questions do not predict final votes, but the Sixth Circuit argument is likely to be influential. Multiple circuits are now wrestling with whether Cemex lawfully relaxes Gissel, whether the Board may adopt such a standard without formal rulemaking, and whether particular records warrant bargaining orders under either framework. The decision that follows could determine the future balance between protecting the integrity of union elections and preserving longstanding remedial limits.