Compliance Stuff

At a Glance For nearly 50 years, the Supreme Court’s decision in  NLRB v. Gissel Packing Co . governed when the Board could issue a bargaining order despite a union’s election loss. In 2023, the Board departed from  Gissel  in  Cemex  by making bargaining orders the default remedy when employer unfair labor practices require setting aside an election. As the first federal court of appeals to review a  Cemex  bargaining order, the Sixth Circuit denied enforcement 2-1 on the ground that  Cemex  was an improper exercise of the Board’s adjudicatory authority. In  Brown-Forman v. NLRB , the U.S. Court of Appeals for the Sixth Circuit became the first federal circuit court to review the National Labor Relations Board’s recent  Cemex  decision. The court found the Board engaged in improper rulemaking when it altered decades of precedent by mandating a bargaining order whenever the employer commits unfair labor practices (ULPs) that re...

A new 6th Circuit decision gives employers an important appellate win on one of the most consequential labor law developments of the past several years. The court’s March 6 ruling refused to enforce a bargaining order issued by the National Labor Relations Board under the framework set by the controversial 2023  Cemex  decision. While that is welcome news for employers, it should not be mistaken for a green light to take a more aggressive approach during union organizing campaigns. Unfair labor practices committed during an organizing drive can still result in rerun elections and, in the right case, even bargaining orders under pre- Cemex  law. So what should employers make of the latest appellate setback for a signature Biden-era Board doctrine? And what are some practical steps you can take right now? The Radical  Cemex  Framework To understand the significance of this ruling, it helps to revisit what  Cemex  did. As we noted  when the Board is...