Labor law and the labor relations landscape in the United States were upended in 2023 when the National Labor Relations Board (NLRB) issued its ruling in Cemex. In that case, the agency set up a framework that drastically altered how unions can attain representative status over a workforce, including by achieving such status through an NLRB order versus winning a secret-ballot election (i.e., a bargaining order). 

Last week, the Sixth Circuit Court of Appeals reviewed the Cemex framework and invalidated it. According to an article from Bloomberg Law: 

“A federal appeals court rejected the NLRB’s landmark Biden-era ruling that aimed to discourage employers from violating labor law before union elections.”

"The National Labor Relations Board overstepped its authority in 2023’s Cemex Construction Materials Pacific LLC, which was a rulemaking disguised as the adjudication of a dispute, a divided U.S. Court of Appeals for the Sixth Circuit held Friday in a decision involving a Kentucky bourbon distillery."

In short, the court said the NLRB went too far by overhauling the standard it uses to evaluate the propriety of bargaining orders — a standard that had been in place for five decades plus. The court remanded the case back to the NLRB for further consideration. It will be interesting to see what the agency says about the Cemex standard on remand. The NLRB currently does not have a three-member majority — it only has two members of the same party — and historically it has waited until it has a three-member majority before overruling significant precedent.

Big picture, this ruling only applies within the jurisdiction of the Sixth Circuit (Ohio, Michigan and Kentucky). Unless the NLRB or the U.S. Supreme Court rules otherwise, the Cemex standard will prevail (for now) in other jurisdictions. Stay tuned to see how this all plays out.