{"id":10792,"date":"2026-05-26T17:45:06","date_gmt":"2026-05-26T17:45:06","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/nlrb-asks-sixth-circuit-to-revisit-its-rejection-of-cemex-dinsmore-shohl-llp\/"},"modified":"2026-05-26T17:45:06","modified_gmt":"2026-05-26T17:45:06","slug":"nlrb-asks-sixth-circuit-to-revisit-its-rejection-of-cemex-dinsmore-shohl-llp","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/nlrb-asks-sixth-circuit-to-revisit-its-rejection-of-cemex-dinsmore-shohl-llp\/","title":{"rendered":"NLRB Asks Sixth Circuit to Revisit its Rejection of Cemex | Dinsmore &#038; Shohl LLP"},"content":{"rendered":"\n<div id=\"html-view-content\">\n<h2 class=\"wp-block-heading\" id=\"h-key-takeaways\"><strong>Key Takeaways:<\/strong><\/h2>\n<ul class=\"wp-block-list\">\n<li>In 2023, the NLRB implemented the <em>Cemex<\/em> framework, which allowed the NLRB to impose remedial bargaining orders even where a fair rerun election might be possible.<\/li>\n<li>In March 2026, a three-judge panel at the Sixth Circuit Court of Appeals rejected the <em>Cemex<\/em> framework as an improper exercise of the NLRB\u2019s adjudicatory authority.<\/li>\n<li>The NLRB has asked for a rehearing of the Sixth Circuit\u2019s decision before all judges on the Sixth Circuit.<\/li>\n<li>The NLRB\u2019s request signals that it will continue to enforce the <em>Cemex<\/em> framework until definitively shut down.<\/li>\n<\/ul>\n<p class=\"wp-block-paragraph\">In <a href=\"https:\/\/www.dinsmore.com\/publications\/sixth-circuit-takes-a-shot-at-nlrbs-authority-to-issue-bargaining-orders\/\" id=\"https:\/\/www.dinsmore.com\/publications\/sixth-circuit-takes-a-shot-at-nlrbs-authority-to-issue-bargaining-orders\/\" type=\"link\" rel=\"nofollow noopener\" target=\"_blank\">March 2026<\/a>, the Sixth Circuit Court of Appeals issued a decision that rejected the National Labor Relations Board\u2019s (NLRB) <em>Cemex<\/em> framework for issuing remedial bargaining orders.\u00a0The NLRB adopted the <em>Cemex<\/em> framework in a 2023 decision that significantly expanded the Board\u2019s authority to issue bargaining orders.\u00a0The Sixth Circuit held, in a 2-1 decision, that the Board\u2019s imposition of the <em>Cemex<\/em> framework exceeded the Board\u2019s adjudicatory authority.<\/p>\n<p class=\"wp-block-paragraph\">On May 11, 2026, the Board requested a rehearing before all active judges on the Sixth Circuit.\u00a0The Board\u2019s request demonstrates that it is not deterred by the Sixth Circuit\u2019s <em>Brown-Forman <\/em>decision and that it will continue to attempt to enforce the <em>Cemex<\/em> framework until the courts definitively shut it down.<\/p>\n<h2 class=\"wp-block-heading\" id=\"h-the-dispute-in-brown-forman\"><strong>The Dispute in <em>Brown-Forman<\/em><\/strong><\/h2>\n<p class=\"wp-block-paragraph\"><em>Brown-Forman <\/em>arose out of a union organizing campaign at the Kentucky facilities of distiller Brown-Forman.\u00a0Brown-Forman gave employees raises and free bourbon shortly before the election.\u00a0The union lost the election and claimed the company engaged in unfair labor practices.\u00a0The Board agreed and \u00a0imposed a bargaining order requiring Brown-Forman to recognize and bargain with the union.<\/p>\n<p class=\"wp-block-paragraph\">In imposing the bargaining order, the Board did not rely on the Supreme Court\u2019s decision in <em>NLRB v. Gissel Packing Co.<\/em>, 395 U.S. 575 (1969).\u00a0 <a href=\"https:\/\/www.dinsmore.com\/publications\/nlrb-pushes-forward-with-cemex-despite-sixth-circuit-setback\/\" id=\"https:\/\/www.dinsmore.com\/publications\/nlrb-pushes-forward-with-cemex-despite-sixth-circuit-setback\/\" type=\"link\" rel=\"nofollow noopener\" target=\"_blank\">The <em>Gissel<\/em> decision<\/a>, which stood as the relevant standard for bargaining orders for more than 50 years, allowed the Board to issue bargaining orders only if a fair rerun election was unlikely.\u00a0<\/p>\n<p class=\"wp-block-paragraph\">Instead, the Board relied on the framework it announced in <em>Cemex Constr. Materials Pac., LLC<\/em>, 372 NLRB 130. The <em>Cemex<\/em> framework significantly expanded the Board\u2019s authority to issue bargaining orders.\u00a0In adopting this framework, the Board noted that it would \u201cno longer look\u201d to <em>Gissel<\/em> and would issue remedial bargaining orders even where a fair rerun election might be possible.<\/p>\n<h2 class=\"wp-block-heading\" id=\"h-the-sixth-circuit-s-decision\"><strong>The Sixth Circuit\u2019s Decision<\/strong><\/h2>\n<p class=\"wp-block-paragraph\">On appeal, <a href=\"https:\/\/www.dinsmore.com\/publications\/ninth-circuit-affirms-bargaining-order-in-cemex-without-opining-on-nlrbs-cemex-framework\/\" rel=\"nofollow noopener\" target=\"_blank\">a three-judge panel<\/a> at the Sixth Circuit agreed that Brown Forman unlawfully interfered with the election.\u00a0However, it rejected the Board\u2019s implementation of a bargaining order.\u00a0<\/p>\n<p class=\"wp-block-paragraph\">The Court held that, when adopting <em>Cemex<\/em>, the Board engaged in improper rulemaking through adjudication. Because the Board based its decision to impose a bargaining order against Brown-Forman exclusively on <em>Cemex<\/em>, and because the Sixth Circuit held that <em>Cemex<\/em> \u201cwas an improper exercise of the Board\u2019s adjudicatory authority,\u201d the Sixth Circuit held it \u201ccannot enforce\u201d the bargaining order against Brown-Forman.\u00a0The Sixth Circuit remanded the case to the Board for further proceedings.\u00a0<\/p>\n<h2 class=\"wp-block-heading\" id=\"h-the-nlrb-s-request-for-rehearing\"><strong>The NLRB\u2019s Request for Rehearing<\/strong><\/h2>\n<p class=\"wp-block-paragraph\">The Board has refused to accept the Sixth Circuit\u2019s rejection of <em>Cemex<\/em>.\u00a0Shortly after the <em>Brown-Forman<\/em> decision, the Board filed a brief in the Ninth Circuit Court of Appeals (where the original <em>Cemex<\/em> case was pending) calling the Sixth Circuit\u2019s analysis \u201cflawed.\u201d<\/p>\n<p class=\"wp-block-paragraph\">On May 11, 2026, the Board asked the Sixth Circuit to reconsider the three-judge panel\u2019s decision at an <em>en banc<\/em> hearing, which is a hearing before all active judges at the Sixth Circuit. This additional form of review is only available in exceptional circumstances, such as when a party claims the panel\u2019s decision conflicts with Supreme Court precedent and\/or involves questions of exceptional importance.\u00a0<\/p>\n<p class=\"wp-block-paragraph\">The Board argues that it is entitled to <em>en banc<\/em> review because the Sixth Circuit\u2019s decision conflicts with Supreme Court precedent.\u00a0The Board argues that it is allowed to act through adjudication (<em>i.e.<\/em>, deciding cases) and through formal rulemaking, and that Supreme Court precedent vests the Board with \u201cbroad discretionary power\u201d to choose which method is appropriate.\u00a0The Board argues that the Sixth Circuit\u2019s decision improperly limits the Board\u2019s adjudicative authority, which is \u201cthe primary procedure it uses to announce policies under the National Labor Relations Act.\u201d\u00a0The Board contends that this alleged restraint on its adjudicative authority is an issue of \u201cexceptional importance\u201d that warrants review by the full Sixth Circuit.<\/p>\n<h2 class=\"wp-block-heading\" id=\"h-takeaways\"><strong>Takeaways<\/strong><\/h2>\n<p class=\"wp-block-paragraph\">The Board\u2019s petition for <em>en banc<\/em> review is important for two reasons.\u00a0First, it indicates that the Board is not deterred by the Sixth Circuit\u2019s decision and that it will continue to enforce the <em>Cemex<\/em> framework \u2013 that is, to issue bargaining orders even where there is no showing that a fair rerun election is unlikely \u2013 until definitively shut down by the courts.\u00a0Second, it indicates that the Board will continue to create and implement labor policy through adjudication and will push back on any restraints to its authority to do so.\u00a0<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>Key Takeaways: In 2023, the NLRB implemented the Cemex framework, which allowed the NLRB to impose remedial bargaining orders even where a fair rerun election might be possible. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":10793,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[1051,8042,610,7626,7550,369,4149,8041,7627,2700],"class_list":["post-10792","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-asks","tag-cemex","tag-circuit","tag-dinsmore","tag-llp","tag-nlrb","tag-rejection","tag-revisit","tag-shohl","tag-sixth"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10792","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=10792"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10792\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/10793"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=10792"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=10792"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=10792"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}