The U.S. Court of Appeals for the Sixth Circuit held on Apr. 15 that the National Labor Relations Board (NLRB) improperly used its adjudicatory authority when it made bargaining orders the default remedy in certain union election disputes, departing from nearly five decades of precedent.
This decision is significant because it addresses how federal agencies can make new policies and what procedures they must follow. The ruling may affect future labor relations cases and could influence how other courts view similar NLRB actions.
For almost 50 years, the Supreme Court’s ruling in NLRB v. Gissel Packing Co. guided when a bargaining order could be issued after a union lost an election due to employer unfair labor practices (ULPs). Under Gissel, such orders were considered extraordinary remedies only when employer conduct undermined fair elections. In 2023, however, the NLRB shifted course with its Cemex Construction Materials Pacific decision by making bargaining orders standard whenever ULPs required setting aside an election—regardless of whether a fair re-run was possible.
In Brown-Forman v. NLRB, the Sixth Circuit became the first appellate court to review this new approach and denied enforcement of a Cemex-based bargaining order by a two-to-one vote. The majority said that “the Board entered that order ‘relying solely on the Cemex standard, which was created through an unlawful exercise of adjudicatory authority.'” The court explained that Congress gave agencies like the NLRB two policy-making paths: formal rulemaking with public input or case-by-case adjudication focused on specific disputes between parties. By creating a broadly applicable rule through case adjudication instead of proper rulemaking procedures, judges found that “the Board’s adjudicatory authority is limited to resolving the dispute of the parties that stand before it.” As such, they ruled against enforcing the Cemex-based remedy and sent the case back to the Board for further proceedings.
Unless appealed or reviewed by higher courts, this ruling will control within Kentucky, Michigan, Ohio, and Tennessee but does not automatically overturn Cemex elsewhere; under its non-acquiescence doctrine, the Board may continue applying its rule outside these states unless stopped by broader judicial action.
Looking ahead, employers are advised to preserve challenges against Cemex-based orders while also remaining compliant with existing recognition demands and election procedures as outlined by recent board decisions.
