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NLRB’s Aggressive Bargaining Order Framework Rejected by Sixth Circuit as Agency Overreach
On March 6, 2026, the U.S. Court of Appeals for the Sixth Circuit rejected the National Labor Relations Board’s (NLRB) controversial Biden-era framework—known as the Cemex standard—that empowered the Board to order employers to bargain with unions whenever the Board determined that employer misconduct undermined the election process, regardless of how employees voted.
In the first federal court ruling on the framework’s legality, the Sixth Circuit in Brown-Forman Corp. v. National Labor Relations Board held that in creating the forward-looking Cemex standard, the NLRB improperly exercised its adjudicatory authority when it should have engaged in rulemaking instead. Consequently, the majority held that the Cemex standard cannot serve as the basis for a bargaining order.
In the first federal court ruling on the framework’s legality, the Sixth Circuit in Brown-Forman Corp. v. National Labor Relations Board held that in creating the forward-looking Cemex standard, the NLRB improperly exercised its adjudicatory authority when it should have engaged in rulemaking instead. Consequently, the majority held that the Cemex standard cannot serve as the basis for a bargaining order.
