Sixth Circuit Rejects NLRB Standard That Made Union Recognition Without an Election More Likely

A federal appeals court ruled that the National Labor Relations Board exceeded its authority when it used its adjudicatory power to change the rules governing bargaining orders. In Brown-Forman Corp. v. NLRB, the Sixth Circuit rejected the NLRB’s Cemex framework, which increased the likelihood that employers would be ordered to recognize a union based on authorization cards rather than a secret ballot election. The court held that Cemex amounted to rulemaking “under the guise of an adjudication” and sent the case back to the NLRB.

Historically, the NLRB reserved the use of bargaining orders without an election for situations where employer misconduct made a fair rerun election impossible. Cemex increased the circumstances in which the Board could impose a bargaining order and raised the stakes of election-related unfair labor practice allegations.

The Board could return to a more traditional remedial analysis or revisit, and potentially reverse, Cemex. Additional challenges to Cemex remain pending in other federal appeals courts and before the Board.

Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can read more here.