Labor & Employment Developments Blog

Most employers understand that unfair labor practices during a union organizing campaign carry significant legal consequences. In recent years, the National Labor Relations Board (NLRB) had ordered employers who engaged in unfair labor practices to bargain with a union regardless of whether the union won the election. In a decision issued on March 6, 2026, the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee) limited the NLRB’s ability issue such bargaining orders, rejecting the NLRB’s recently announced Cemex framework for ordering employers to recognize and bargain with unions.

The case, Brown-Forman Corporation d/b/a Woodford Reserve Distillery v. National Labor Relations Board, arose from a union organizing campaign at Brown-Forman’s Woodford Reserve Distillery in Kentucky. Employees expressed dissatisfaction with their compensation and began efforts to unionize. Shortly before the union election, Brown-Forman implemented several compensation-related changes, including a $4 per-hour wage increase, adjustments to certain benefits, and the distribution of bottles of bourbon to employees. The union ultimately lost the election.

After the vote, however, the union challenged the results and filed unfair labor practice charges, arguing that the company’s actions improperly influenced employees’ votes. The NLRB agreed, finding that the wage increases, benefit changes, and gifts interfered with employees’ free choice during the organizing campaign. Relying on its newly announced Cemex framework, the NLRB set aside the election and ordered Brown-Forman to recognize and bargain with the union despite the union’s loss at the ballot box.

On review, the Sixth Circuit agreed that Brown-Forman’s conduct constituted unfair labor practices. However, the court rejected the NLRB’s decision to impose a bargaining order under the Cemex framework. The court concluded the NLRB improperly created the new standard without following the formal rulemaking procedures required by the Administrative Procedure Act.

The court explained that the Cemex framework represented a significant departure from more than fifty years of precedent approved by the Supreme Court in NLRB v. Gissel Packing Co. Under Gissel, a bargaining order is considered an extraordinary remedy and may be imposed only where an employer’s misconduct is so severe that it makes a fair rerun election unlikely. By contrast, the NLRB’s Cemex framework suggested that a bargaining order could follow from any unfair labor practices committed during the organizing process without first determining whether a fair election could still occur. The Sixth Circuit sent the case back to the NLRB to determine whether a bargaining order was justified under the traditional Gissel standard or whether a second election should be conducted.

What This Means for Employers

This decision has several important implications for employers facing union organizing campaigns:

• Limits the Cemex Framework: Employers within the Sixth Circuit now have strong grounds to challenge bargaining orders issued under the Cemex The decision may also serve as persuasive authority for employers in other jurisdictions seeking to challenge similar NLRB orders.
• Reinforces the Preference for Secret-Ballot Elections: The ruling reaffirms that secret-ballot elections remain the preferred method for determining union representation. Under the longstanding Gissel standard, the NLRB must first determine whether employer misconduct makes a fair rerun election unlikely before imposing the extraordinary remedy of a bargaining order.
• Unfair Labor Practices Still Carry Consequences: The decision does not limit the NLRB’s authority to find unfair labor practices or set aside election results where employer conduct interferes with employee free choice. Employers should consult with counsel before implementing wage increases, benefit changes, or other workplace modifications during organizing campaigns.

Additional litigation is likely as this decision is the first federal appellate ruling to address the validity of the NLRB’s Cemex framework. If other circuits reach different conclusions regarding the NLRB’s authority to adopt the framework, the issue could ultimately reach the Supreme Court.

The KMK Labor & Employment team will continue to monitor developments in this area and is available to assist employers in navigating union organizing activity, evaluating workplace changes during campaigns, and responding to unfair labor practice allegations.