A federal appeals court panel voiced strong doubts about the NLRB bargaining ruling, which could force employers to negotiate with unions even after election losses. As a result, the 6th U.S. Circuit Court of Appeals devoted significant attention to whether the Board expanded its authority beyond what Congress intended. During the hearing, judges raised repeated questions about the scope of the Board’s power.
The dispute centers on Brown-Forman Corp., the company behind Jack Daniel’s whiskey. Accordingly, the NLRB ordered Brown-Forman to bargain with a union despite the union’s clear 45–14 defeat. The Board justified this action by relying on the Cemex standard, which allows bargaining orders when it finds employer misconduct during union campaigns.
How the NLRB Bargaining Ruling Conflicts With Gissel
Several judges focused on whether the NLRB bargaining ruling contradicts the Supreme Court’s 1969 decision in NLRB v. Gissel Packing Co.. Under Gissel, the Board may issue bargaining orders only in extreme situations where employer actions destroy the possibility of a fair election. However, the new standard appears far broader and easier to invoke.
Judge David McKeague questioned how Cemex could align with Gissel when it requires far less proof of wrongdoing. Judge Richard Griffin, a former NLRB General Counsel, also raised concerns. Moreover, he warned that the
ruling might allow unions to gain bargaining rights with only minimal evidence of employer pressure.
NLRB attorney Barbara Sheehy defended the Board’s authority. She argued that Gissel does not limit modern remedies and that the Board must protect workers from subtle and harmful tactics. Nevertheless, the judges remained wary. They noted that Cemex might override the election process itself.
Brown-Forman’s Case Highlights the Impact of the NLRB Bargaining Ruling
At the center of the case is a union campaign at a Brown-Forman facility. Workers voted against union representation. Afterward, the NLRB said Brown-Forman influenced the election by offering raises, better benefits, and other incentives. The Board claimed these actions undermined the vote. Consequently, it imposed a bargaining order despite the election result.
Under the NLRB bargaining ruling, the Board required Brown-Forman to recognize the union anyway. The company argues this order ignores the workers’ decision. Furthermore, it says the Board replaced employee choice with administrative judgment.
The union countered that holding a new election would expose workers to more pressure. In its view, bargaining is the fastest way to protect their rights.
National Stakes of the NLRB Bargaining Ruling
The NLRB bargaining ruling has quickly become one of the most debated issues in labor law. If
courts uphold it, unions may secure recognition more easily. Employers could face bargaining orders even after they win elections. In addition, the Board would gain greater authority to penalize conduct it views as coercive.
Supporters say the ruling blocks employers from using fear-based tactics. On the other hand, opponents warn that it weakens secret-ballot elections and shifts control away from workers.
The 6th Circuit is not the only court reviewing this policy. The 9th U.S. Circuit Court of Appeals is weighing a similar challenge. Consequently, conflicting decisions could push the issue toward the U.S. Supreme Court.
A Divided Panel
Judge Andre Mathis, appointed by President Biden, asked pointed questions but did not reveal his stance. Even so, his vote may decide the case. Meanwhile, Judges McKeague and Griffin expressed strong concerns about the reach of the NLRB bargaining ruling.
Brown-Forman insists it followed the law. It says the Board punished it too harshly and ignored the clear results of the vote. Conversely, the NLRB maintains that its decision protects workers in an environment shaped by employer influence.
What Comes Next
The court will issue a ruling in the coming months. The decision could reshape how unions organize and how employers respond to campaigns. If the judges strike down the NLRB bargaining ruling, the Board may need to rethink its approach to election misconduct. But if they uphold it, the NLRB gains a stronger tool to counter employer behavior.
Either outcome will affect workers, unions, and employers nationwide. Ultimately, the Brown-Forman case may become the clearest test yet of how far the NLRB can go when balancing elections with labor rights.
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