In the iconic 1999 film “The Sixth Sense,” a 9-year-old routinely sees dead people. In the Sixth Circuit, we might now be seeing a dead Cemex decision, the one in which the National Labor Relations Board (NLRB) in 2023 upended over 50 years of precedent regarding union elections and election interference remedies.
As a refresher, before the Board’s Cemex decision, an employer was always free to reject a union’s claim of majority support among members of a proposed bargaining unit when based solely on presentation of cards signed by the employees. The union’s proper pathway in response to such a rejection was to file a petition for a secret ballot election to be conducted by the NLRB. Such elections have always been considered the “gold standard” for determining majority support.
In Cemex Construction Materials Pacific, LLC ( 372 NLRB #130, 2023) the NLRB overturned 52 years of precedent by setting up a regime that put the burden on an employer to file for an NLRB election or face a “Cemex bargaining order” for refusing to recognize a union voluntarily. Cemex also allowed bargaining orders to be issued if the board determined that the employer had engaged in unfair labor practices while the petition/election was pending, without any election being held.
The Cemex decision, issued by the “Biden Board” was widely seen to be on the chopping block of the new Trump- nominated Board. Delayed nominations and “other distractions” have left the current Board without the three republican members historically needed to overturn precedent. On March 6, 2026, U.S. Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) stepped in with a body blow to Cemex, at least as far as its remedies are concerned.
In Brown-Forman v. NLRB (6th Cir. 2026) a union lost an election but claimed that multiple actions by the employer interfered with the election results and constituted unfair labor practices that justified the issuance of an order forcing the company to recognize and bargain with the union, regardless of the vote. The NLRB reviewed the employer’s conduct, which included a unilateral $4.00 hour wage increase for everyone, enhanced the ability of employees to schedule vacations and holiday time off, and free bottles of bourbon. (The employer distills and distributes The Woodford Reserve brand. But really?)
The Board (when still controlled by President Biden’s appointees) concluded that the employer’s actions were, in fact, unlawful and did interfere with the election results. Following its decision in Cemex, the Board issued the order requiring the employer to bargain with the union, with no case-specific reasoning and without any explanation as to why the election could not simply be re-run.
On review, the Appeals court had no disagreement with the findings that the employer’s conduct was unlawful and did interfere with the election. However, the court strongly rejected the NLRB’s Cemex-driven remedy of an order to bargain. Relying on recent Supreme Court precedent regarding limitations on agency powers and the long-standing preference for elections to determine employee support, the court declared that the Cemex decision reflected “an improper exercise of the Board’s adjudicatory authority,” that it cannot be used in fashioning a remedy for ULPs in the election context, and that it “has no precedential value.”
Bottom Line: The Court of Appeals sent the case back to the Board for reconsideration in light of its actual statutory authority. When that occurs, we can assume this Trump-appointed Board will terminate all aspects of Cemex. Because the 8th Circuit has not yet considered the issue, Minnesota employers and others within that Circuit should still seek qualified advice before deciding how to react to a union demand for recognition and how to run an election campaign involving a union vote. At a minimum, it would be prudent not to give away free bottles of liquor to voters.