The Election Was the Point. They Took That Too.

A bourbon distillery in Kentucky is not where most people would expect federal labor law to get rewritten. But on March 6, 2026, the Sixth Circuit Court of Appeals used a union drive at Brown-Forman’s Woodford Reserve facility to dismantle one of the most significant worker protections the Biden-era NLRB had built, and handed management-side law firms a roadmap for doing the same thing everywhere else.
The decision in Brown-Forman Corp. v. NLRB did not make headlines the way a mass layoff does. It did not trend. It will not be chanted at a march. But its consequences for every worker who tries to organize a union in the next decade are more durable than most things that did trend this spring, and understanding what it actually did requires going back to what it was designed to undo.

What Happened at a Kentucky Distillery

The Bourbon, the Raises, and the Vote

The facts of Brown-Forman are almost too on-the-nose to be useful as a symbol, except that they are real and documented. When the International Brotherhood of Teamsters began organizing production workers at Woodford Reserve, Brown-Forman’s management responded by announcing a $4-per-hour raise, expanding merit-based salary increases, and implementing a more flexible vacation policy. One week before the election, the company gave every employee a free bottle of bourbon. The union lost by a vote of 45 to 14.

This conduct, granting economic benefits during an organizing campaign to influence the vote, is a textbook unfair labor practice under NLRB v. Exchange Parts Co., a 1964 Supreme Court decision that established the principle that pre-election benefits have a lasting coercive effect on workers regardless of intent. The NLRB’s Administrative Law Judge agreed. The Board agreed. The Sixth Circuit agreed. Brown-Forman broke the law. On that, everyone was unanimous.

Where the Sixth Circuit departed was on the remedy. The NLRB, relying on the Cemex standard it had established in 2023, ordered Brown-Forman to recognize and bargain with the Teamsters even though the union had lost the election. The Sixth Circuit threw that remedy out, ruled the Cemex standard itself invalid, and sent the case back to the NLRB to figure out what to do under the old rules. The employer cheated. The employer won anyway. That is the sentence the ruling produces when you translate it out of legal language.

What Cemex Was and Why It Mattered

To understand what was lost, you need to understand what Cemex actually did. Before 2023, the standard for when the NLRB could order an employer to bargain with a union that had lost an election was set by NLRB v. Gissel Packing Co., a 1969 Supreme Court decision. Under Gissel, a bargaining order, the remedy that requires an employer to recognize and negotiate with a union regardless of the election outcome, was reserved for situations where the employer’s unfair labor practices were so serious and pervasive that no fair rerun election could ever be held. The bar was, in practice, nearly impossible to clear. Employers learned quickly that moderate cheating, the kind that tilts an election without being so egregious that it makes a second election impossible, carried almost no meaningful consequence.

Cemex changed that calculus. Under the 2023 standard, when a union had already demonstrated majority support through authorization cards and an employer committed any unfair labor practice during the campaign, the default remedy shifted from “run the election again” to “bargain with the union.” The logic was direct: if an employer is willing to break the law once to stop a union, ordering another election just gives them another opportunity to break the law again. Cemex made cheating expensive in a way Gissel never had. That is why the management-side legal industry spent two years trying to kill it, and why the Brown-Forman case was the vehicle they chose.

The Loper Bright Connection

The Sixth Circuit’s reasoning in Brown-Forman did not come from nowhere. The court relied heavily on Loper Bright Enterprises v. Raimondo, the 2024 Supreme Court decision that overruled the Chevron doctrine, which had for forty years required courts to defer to federal agencies’ reasonable interpretations of ambiguous statutes. With Chevron gone, courts are now the final word on what agencies can and cannot do, and the Sixth Circuit used that authority to rule that the NLRB had overstepped by creating the Cemex standard through a single adjudicated case rather than through formal notice-and-comment rulemaking.

The argument is procedural rather than substantive: the Sixth Circuit did not say Cemex was wrong on the merits, it said the NLRB used the wrong process to create it. That distinction matters because it means the court never actually engaged with whether the policy itself was sound. One dissenting judge argued that the Board has always had discretion to choose between rulemaking and adjudication and that the majority’s reasoning was “unduly fastidious.” The majority didn’t care. The chain of decisions from Loper Bright through Brown-Forman is a legal architecture being built one case at a time, with each ruling expanding the space in which employers operate and narrowing the space in which workers can enforce their rights.

What the Rulebook Now Says

ROOT: The Fifty-Year Standard They Restored

The Gissel standard that Brown-Forman restored was already a high bar before Cemex lowered it. Under Gissel, workers trying to get a bargaining order after a tainted election have to demonstrate either that the employer’s unfair labor practices were so serious and pervasive that they cast doubt on the results, or that the coercive atmosphere created by the employer makes any fair rerun election impossible. In practice, courts have interpreted this so narrowly that Gissel bargaining orders have been extremely rare for decades. Employers with sophisticated legal counsel learned long ago how to cheat in ways that tilt elections without crossing the Gissel threshold.

What Cemex recognized was that the system had been gamed. The NLRB’s own decades of experience administering Gissel showed that moderate but systematic employer misconduct was essentially consequence-free. The pre-election wage increase, the captive audience meeting, the implied threat, the free bottle of bourbon: none of these, individually or together, typically cleared the Gissel bar. Cemex was an attempt to make the legal standard match the documented reality of what employers actually do during organizing campaigns. Brown-Forman erased that attempt and handed the law back to 1969.

The Geography of the Rollback

The Sixth Circuit’s ruling is currently binding only within its jurisdiction, which covers Kentucky, Michigan, Ohio, and Tennessee. Outside those states, Cemex remains technically valid Board precedent. But the DLA Piper analysis of the decision is direct about what comes next: Brown-Forman provides a roadmap for successfully challenging Cemex-based bargaining orders in every other circuit. Management-side law firms are already using it. The question is not whether other circuits will face the same challenge. It is which one moves first.

For California workers specifically, the stakes are immediate. The original Cemex case is currently pending before the Ninth Circuit, which covers California, Oregon, Washington, Nevada, and Arizona. The Ninth Circuit’s decision will determine whether the doctrine survives in the western states. Given the Sixth Circuit’s reasoning, the Brown-Forman decision, and the current composition of the federal judiciary, California workers and organizers would be unwise to assume Cemex will survive that review.

The UPS Ruling as the Same-Week Contrast

The week the OnLabor roundup published the Brown-Forman analysis, it also reported that an NLRB Administrative Law Judge found UPS guilty of denying pay raises to workers specifically because of an upcoming union election, ordering the company to pay the raises workers would have received. The judge found that UPS “denied these employees pay raises because of the upcoming election which resulted from their protected union activities.” The irony is structural: UPS did almost exactly what Brown-Forman did, withheld economic benefits to influence an organizing campaign, and got caught. The ALJ ordered a remedy. Under Cemex, that remedy might have included a bargaining order. Under the post-Brown-Forman landscape, the most workers can realistically expect is the raises they were already entitled to and, possibly, another election that the employer now knows it can try to tilt again.

The gap between what the law says employers cannot do and what happens to them when they do it anyway has always been wide. Brown-Forman made it wider.

What This Means for Workers

THE GAP

The practical consequence of losing Cemex is this: the default remedy for employer cheating during a union campaign goes back to being another election. For workers who have already spent months organizing, who have already faced interrogation, intimidation, implied threats, and the kind of economic pressure that a $4-per-hour raise one week before a vote produces, being told they get to try again is not a remedy. It is an invitation to be cheated again by an employer who now knows the legal ceiling on consequences.

The gap between what workers lose when an employer breaks the law and what employers lose when they get caught has always been the central asymmetry of American labor law. Cemex was an imperfect attempt to narrow that gap by making the consequences of employer misconduct proportional to the harm it caused. The Brown-Forman decision restores the asymmetry. Workers who were cheated out of a fair election have to run the gauntlet again. Employers who did the cheating get a second chance with the same workforce and a clearer understanding of exactly how far they can push.

WHO PROFITS

Morgan Lewis filed an amicus curiae brief on behalf of multiple employer organizations in the Sixth Circuit case, explicitly advocating for the standard’s invalidation. The management-side legal industry that built its practice around running out the clock on organizing campaigns has an obvious and documented interest in returning to a legal standard under which moderate employer misconduct during elections carries minimal consequence. That industry spent two years identifying the right vehicle for this challenge, found it in a Kentucky bourbon distillery, and used the Loper Bright architecture the Supreme Court had already built to make the argument.

What profits from this ruling is not just Brown-Forman or the bourbon industry. It is the entire apparatus of union avoidance, the law firms, consultants, and management training programs whose business model depends on the reliable knowledge that employers can tilt elections without facing remedies proportional to the tilt. The Benesch analysis of the decision is candid about what employers should do now: preserve arguments challenging Cemex components that the Sixth Circuit didn’t address, monitor the Ninth Circuit case, and anticipate that a Republican-majority NLRB Board may formally reverse Cemex through its own processes before any court has to. The legal architecture is being closed from multiple directions simultaneously. That is not a coincidence.

The Ninth Circuit Is Next

The original Cemex case, the one that established the standard in the first place, is currently before the Ninth Circuit. California employers are being advised to continue exercising caution during organizing campaigns for now, not because Cemex is safe in California, but because even without it, egregious employer conduct can still support a bargaining order under Gissel. That is a thin comfort for workers whose employers have spent decades learning how to stay just below the Gissel threshold.

The Ninth Circuit’s decision on the original Cemex case will be the most consequential labor law ruling of 2026 for workers in California, Oregon, Washington, Nevada, and Arizona. It will either preserve the standard in the western states and set up a circuit split that forces the Supreme Court to weigh in, or it will follow the Sixth Circuit’s reasoning and effectively end Cemex nationally before the NLRB’s Republican majority gets around to reversing it formally. Either outcome advances the same project: a labor law landscape in which the consequences for employer misconduct during organizing campaigns are systematically insufficient to deter that misconduct. The rulebook is being rewritten again. Most workers still don’t know the first rewrite happened.

FURTHER READING

What Cemex actually established and why it mattered
NLRB — Cemex Construction Materials Pacific, LLC, Case 28-CA-230115
The original 2023 Board decision that created the standard Brown-Forman dismantled. Read the primary source to understand what the Sixth Circuit was actually ruling against.

The Sixth Circuit’s full reasoning in Brown-Forman
Benesch — Brown-Forman Decision Rolls Back NLRB’s Pro-Union Cemex Policy
The clearest plain-language account of what the court ruled, why it ruled that way, and what employers are being advised to do next.

The dissent that named what the majority got wrong
Justia Verdict — Sixth Circuit Holds that NLRB’s Cemex Ruling is the Product of an Unlawful Adjudication
Professor Samuel Estreicher’s analysis of why the Sixth Circuit’s procedural reasoning is flawed, and why the dissent had the stronger argument on the merits.

Why California workers are the next test
CDF Labor Law — Sixth Circuit Rejects NLRB’s Cemex Standard: What California Employers Should Know
The Ninth Circuit has the original Cemex case. This piece explains what that means for workers in the western states and what the realistic range of outcomes looks like.

The Loper Bright decision that built the architecture
Supreme Court — Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)
The 2024 decision that ended Chevron deference and handed courts the tool the Sixth Circuit used in Brown-Forman. Understanding Loper Bright is prerequisite to understanding every agency rollback that has followed it.

The UPS ruling that landed the same week
OnLabor — News and Commentary: May 11, 2026
The daily labor law roundup that reported both the UPS ALJ decision and the Cemex analysis in the same morning, making the structural contrast between what the law prohibits and what happens when employers do it anyway impossible to miss.

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