In Brown-Forman Corp. v. NLRB, No. 24-2107 (6th Cir. 2026), the Sixth Circuit wiped the standard set forth in the National Labor Relations Board’s (“NLRB”) decision in Cemex Construction Materials Pac., LLC, 372 NLRB 130 and flushed its “new” standard that upended nearly 50 years of Supreme Court precedent.
Specifically, the Board’s decision and standard set forth in Cemex effectively replaced the longstanding Gissel standard articulated in the Supreme Court’s opinion in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969) by holding that bargaining orders are the default remedy for an employer’s unfair labor practice during union organizing.
To issue a bargaining order under Gissel, the Board must first find that there is a showing of majority union support amongst employees, and second, find that a fair election cannot occur under all the circumstances given the employer’s misconduct – meaning, the Board must find that the required “laboratory conditions” cannot be restored during union organizing. The required “laboratory conditions” are those that allow an employee to make a choice free from employer interference during unionizing efforts.
While the Gissel Court acknowledged that bargaining orders are an appropriate remedy for an employer’s unfair labor practices, it did not require the Board to dismiss an election petition and simply issue a bargaining order as the default remedy. Instead, under Gissel, a rerun election is still the preferred remedy. This standard was the blueprint for issuing bargaining orders – an extreme remedy – for nearly 50 years.
Enter Cemex.
Cemex changed longstanding organizing principles in two ways. First, under Cemex, if a union claimed majority support and demanded recognition, an employer had only two options: (1) immediately recognize and begin bargaining with the union; or (2) within two weeks of the union’s demand, the employer must file a petition seeking its own election by filing a petition. If an employer ignored the demand and failed to file a petition within a 14-day window, the Board had authority to order the employer to bargain with the union without an election. This particular holding in Cemex was not the focus of the Sixth Circuit’s decision in Brown-Forman, so this part of the Cemex decision is still valid (at least for now).
Second, and perhaps the most aggressive part of Cemex was its remedial standard. Under Cemex’s remedial standard, if an employer filed for an election but then committed even a single unfair labor practice during the “critical period” – the period of time from the filing of the representation petition through the election – the Board could cancel or set aside the election results and issue a bargaining order, forcing the employer to recognize and bargain with the union immediately, and without a single employee casting a vote. Announcing that it would “no longer look to Gissel,” the Cemex Board held that it was no longer necessary for the Board to find that a future fair election was unlikely before issuing a bargaining order. This standard marked a departure from the long-standing rule set forth in Gissel.
Enter Brown-Forman.
What Happened in Kentucky?
Employees at Brown-Forman Corporation’s Woodford Reserve facility in Versailles, Kentucky pursued unionization after dissatisfaction with compensation grew following the company’s management implementing an across-the-board $1 salary increase. When unionization efforts grew, but before the union filed a petition, management struck up a plan to increase employee wages by $4-per-hour and expand Brown-Forman’s pay policies and benefits. After the union filed a petition, during the “critical period,” the company implemented this plan. Then, a week before the election, Brown-Forman gave free bottles of bourbon to its employees (the company is a distiller).
The election was held and only 14 of 59 voting employees supported the union. The union objected, claiming Brown-Forman and its managers committed unfair labor practices that interfered with the election.
An NLRB Administrative Law Judge (“ALJ”) concluded that Brown-Forman committed unfair labor practices and recommended ordering Brown-Forman to cease-and-desist from engaging in conduct that violates the NLRA. The ALJ also recommended a bargaining order directing Brown-Forman to recognize and negotiate with the union, citing both Cemex and Gissel as support. The Board agreed with the ALJ’s recommendation to issue a bargaining order but only relied on the standard set forth in Cemex.
Sixth Circuit’s Key Holdings
On appeal, the Sixth Circuit found that substantial evidence supported the Board’s unfair labor practice findings and its consideration of related pre-petition conduct that continued post-petition, including Brown-Forman’s gift of bourbon to its employees.
However, the Court rejected the Board’s bargaining order. The Court held that the Cemex standard was improperly promulgated through the Board’s adjudicatory authority and could not serve as the basis for a bargaining order. Specifically, the Court found that the Cemex Board used its adjudicatory authority to make broad-sweeping policy to deter future hypothetical unfair labor practices – an exercise of power that the Court found was not vested in the Board through its adjudicatory authority but rather through its rulemaking authority. Because the Board in the Brown-Forman matter relied solely on Cemex, the Sixth Circuit remanded the case for the Board to “start fresh” using appropriate standards.
Employer Takeaways
Within the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, bargaining orders cannot rest solely on Cemex; instead, the Board must ground such remedies in valid authority (e.g., Gissel) with case-specific findings on whether a fair, new election is unlikely.
At the same time, employers should expect continued enforcement of Section 8(a)(1) and (3) during campaigns. This means that well-timed, across-the-board raises, benefit changes, or gifts tied to organizing (including bottles of bourbon) remain high-risk and can invalidate favorable election results or result in a bargaining order. As such, if employers seek to implement these changes during the “critical period,” they should consult legal counsel and have an independent business justification for such changes.
K|W|W is monitoring developments following the Sixth Circuit’s decision in Brown-Forman, particularly to see if other Circuits will follow the Sixth Circuit by rejecting the Cemex standard. At least for now, other Circuits may still apply Cemex’s remedial standard. If you have questions regarding this development or any other labor matter, please contact a K|W|W attorney.
