In 2023, the NLRB’s aggressive Cemex decision repudiated decades-old precedent established in the Supreme Court’s 1969 Gissel ruling. Our own Phil Wilson branded the Board’s move as “game-changing” regarding what employer conduct can lead to bargaining orders with a union that lost an election. Wilson further described Cemex as “a ‘prior restraint’ on employer speech” that put employers at risk of a bargaining order over a single ULP charge. This is a sharp contrast to the Gissel standard, which led to a bargaining order only in cases of extreme employer conduct.
Cemex was in line with the Biden Board’s other combatively pro-Labor moves that are now falling, one by one. Last week, the current NLRB halted the effort to bury Ex-Cell-O‘s “make-whole” remedy framework, a longtime Abruzzo priority. Now, the Cemex court fallout has taken a turn with a new ruling from the Sixth Circuit in Brown-Forman Corporation v. NLRB. In this case, the appeals court declined to enforce a Cemex bargaining order and remanded the case for review at the NLRB.
Other appeals courts are still considering Cemex bargaining orders, and here’s what happened with the newest court ruling:
The Sixth Circuit’s Ruling Wasn’t A Surprise:
In Dec. 2025, these appeals court judges seemed “leery” of the Cemex standard during oral arguments of this case, which involved whiskey-maker Brown-Forman’s conduct during a Teamsters election. The judges agreed with the Board’s fact finding regarding ULPs but suggested that the Board got carried away while overturning Gissel precedent.
During those oral arguments, a judge also posed a ”fundamental question”: “Is the Board authorized to overrule Supreme Court decisions?”
Well, the Sixth Circuit opinion continued that train of thought while declining to enforce the Cemex bargaining order:
- The court found that “the Cemex Board exceeded its adjudicatory authority,” which confirms that the Biden NLRB was in overreach mode.
- The court dragged the NLRB for not reaching the Cemex standard in light of “case-specific facts, but on general observations from ‘[d]ecades of experience administering the Gissel standard’ in other adjudications.” In other words, the Board had already decided what they wanted to do with Cemex and backed into the decision without considering the case’s facts.
Where Other Appeals Courts Stand On Cemex:
The Ninth Circuit heard oral arguments on the Cemex appeal back in Oct. 2024, and there has been no further movement other than the NLRB pushing for a resolution in Nov. 2025. However, the judges did express skepticism on applying Cemex for a bargaining order.
The D.C. Circuit also heard oral arguments in NP Red Rock LLC vs. NLRB with judges leaning toward using Gissel rather than Cemex to issue a bargaining order for a Las Vegas casino. Judge Florence Pan, a Biden nominee, voiced skepticism while declaring it “superfluous” to use Cemex for a bargaining order rather than to apply Gissel if that standard is met.
Other Inflection Points In This Saga:
Wells Fargo: In Aug. 2025, the banking giant was targeted for a Cemex order by an acting NLRB regional director over a representation election lost by CWA. Wells Fargo has asked the Board to overturn Cemex.
An early testing ground: In the months after the Cemex decision, multiple employers in the cannabis industry tangled with this standard after unions lost elections at dispensaries.
Where Cemex Goes Next:
The case will now go back to the Board, where employer-friendly members are likely to act accordingly with the Sixth Circuit determination of overreach by the Abruzzo-Biden Board. Additionally, the other appeals court proceedings are pending, but it looks like, at some point, the drastic overreach of Cemex bargaining orders will be no more.
Employers should know that Gissel bargaining orders can still happen in cases of ULPs during union elections. Less harsh remedies are more likely, including election re-runs, in such cases. Yet if Cemex is fully vanquished as a standard, that would score a point for employer free speech.
