Sixth Circuit Rules against NLRB’s Cemex Decision, and Other Key Labor Developments since the Start of 2026

At a Glance

• On January 7, the NLRB regained a quorum with the swearing-in of James Murphy and Scott Mayer to its governing Board, as well as new General Counsel Crystal Carey, who has reiterated adherence to new docketing and investigation protocols whereby within two weeks of filing a charge of unfair labor practice, the charging party must submit initial evidence, and the charge will be assigned when there is a Board agent with sufficient capacity for timely investigation.
• On February 26 in Longmont United Hospital, the Board declined to change its longstanding approach in refusal to bargain cases when faced with the question of whether an employer who had unsuccessfully challenged certification must also compensate employees for the potential gains lost as a result of the employer’s refusal to begin, affirming its longstanding precedent in Ex-Cell-O Corp.
• On March 6 in Brown-Forman, the Sixth Circuit ruled that the Board’s decision in Cemex was unlawful and rejected the Board’s ability to issue general rules that apply beyond the case’s immediate litigants through its adjudication process — which is how the Board has issued virtually all of its rules to date. Respondents in these jurisdictions facing NLRB charges that are dependent upon “seminal” NLRB decisions setting specific rules should thus raise this case as part of their affirmative defenses at the earliest opportunity.

New Quorum, New General Counsel, and New Rules at the NLRB in 2026

The turn of the new year saw the long-awaited return of quorum to the governing five-person board (Board) of the National Labor Relations Board (NLRB) after the confirmation of two new Republican appointees — James Murphy and Scott Mayer. Murphy, a veteran of the agency, and Mayer, a longtime management-side labor lawyer, joined Democratic appointee David Prouty in January. The swearing in of these two appointees on January 7, 2026, broke the Board’s decision-making logjam, and the Board has been issuing decisions at a modest pace since. However, with only three members and a 2-1 split, the return to quorum does not necessarily signal the advent of an aggressive push to roll back the decisions of the Biden administration. Board tradition dictates that Board members not overturn prior precedent without at least three votes in favor. As such, major policy shifts are unlikely until a third Republican appointee is confirmed to the Board. 

Likewise on January 7, Crystal Carey assumed the post of general counsel of the NLRB, following final confirmation by the Senate. Carey succeeds Jennifer Abruzzo, who was removed by President Trump, and William Cowen, who served as acting general counsel while her nomination was pending. 

Since becoming general counsel, Carey has focused on her transition into the role and addressing the backlog of cases and operational issues presently facing the Board. Unlike her predecessor, Abruzzo, Carey elected to forgo issuing a Mandatory Submissions to Advice memorandum (the document by which the general counsel identifies the types of cases they will prioritize in an effort to reshape federal labor law). Carey instead stated in her first general counsel memorandum (GC 26-02) that her focus is solely on addressing the backlog of cases before the Board.

In her second memorandum (GC 26-03), Carey reiterated her adherence to new docketing and investigation protocols adopted by Acting General Counsel Cowen (GC 26-01). With that directive, Cowen announced that, due to backlog and staffing issues, unfair labor practice charges would face increased scrutiny before being assigned to a Board agent for investigation. Now, within two weeks of filing a charge, the charging party must submit initial evidence supporting their allegations (a timeline of event, witness list, documentation, etc.). Once received, the charge will be assigned when there is a Board agent who has sufficient capacity to allow for timely investigation of the charge.

The NLRB Rejects Monetary Remedies in Refusal to Bargain Cases

On February 26, 2026, the newly constituted Board issued its first major decision in Longmont United Hospital. In a 2-1 decision, the Board declined to change its longstanding approach in refusal to bargain cases when faced with the question of whether an employer who had unsuccessfully challenged certification must also compensate employees for the potential gains lost as a result of the employer’s refusal to begin. In rejecting these speculative monetary remedies, the Board affirmed its longstanding precedent in Ex-Cell-O Corp., because this would impermissibly burden an employer’s ability to challenge union certifications and would establish relief beyond the permissible scope of the National Labor Relations Act (NLRA).

For background, under the NLRA, an employer who is dissatisfied with an adverse decision by the Board in a representation proceeding can only obtain judicial review of the decision by refusing to bargain with the union once certified. In doing so, it attempts to trigger the filing of an unfair labor practice charge by the union, allowing a federal circuit court to eventually review the certification issue upon appeal, after the employer appeals the NLRB’s disposition of the companion unfair labor practice charge. Under Ex-Cell-O, if the circuit court upheld certification, the employer would be ordered to refrain from any further delay, begin bargaining with the union, and post a notice of employee rights under the NLRA in the workplace.

Former NLRB General Counsel Jennifer Abruzzo had sought to have the Board overrule Ex-Cell-O in her tenure with the agency and had argued in Longmont for just that. The Board disagreed. The Board emphasized that refusing to bargain is the employer’s only means of seeking judicial review of a union certification, and that imposing compensatory damages would chill the exercise of those statutory rights. The Board also made clear that the NLRB does not have the authority to compel parties to reach any agreement over a subject of bargaining, which an award of compensatory damages would effectively do. The Board further cautioned that such a speculative rule would hinder, rather than encourage, agreement through collective bargaining. 

Sixth Circuit Splits “Rules” and “Adjudications” to Quash Cemex, Bringing Decades of Board Precedent into Doubt

On March 6, 2026, in a divided decision in Brown-Forman, the US Court of Appeals for the Sixth Circuit became the first federal court to rule that the Board’s decision in Cemex was unlawful. 

Cemex was the watershed 2023 case amending the Board’s protocols for issuing an order requiring an employer to bargain with a union based on signed authorization cards only, either because the employer failed to timely challenge the veracity of the cards through the election process or tainted that election through unfair labor practices. Cemex has faced stern challenge across the United States since its inception, and it is anticipated the NLRB will overturn the decision (likely before a circuit split forms and the issue is taken up on appeal to the US Supreme Court.)

But even more important than what the Sixth Circuit did is how they did it. Rather than strike down the Cemex decision on substantive grounds, the majority found it procedurally flawed, holding that the Board could not announce new rules prospectively through its adjudication process, unless the Board uses “case-specific facts to establish this [new] standard as the proper analytical framework to better resolve the parties’ dispute.” In short, the Sixth Circuit has rejected the Board’s ability to issue general rules that apply beyond the case’s immediate litigants through its adjudication process — which is how the Board has issued virtually all of its rules to date, as Judge Mathis observed in his dissent.

This ruling opens the door to an entirely new realm of challenges to NLRB decisions. Whenever the Board’s opinion either sets or is based upon a “rule” announced in a prior case, that rule now must be analyzed against the facts of the case in which it originated, to determine if it was truly aimed at resolving the individual litigants’ dispute or setting a broader standard moving forward. And, if the latter, the agency now must justify why that rule is appropriate to apply in the present case, as if the rule were being issued in the first instance. The current Board will thus simultaneously: (1) operate with an express directive to ignore stare decisis as it relates to NLRB rules-through-adjudication that have been in place for decades; and (2) be required to issue much longer and more detailed decisions explaining either its adherence to or deviation from such rules on a case-by-case basis.

Respondents in these jurisdictions facing NLRB charges that are dependent upon “seminal” NLRB decisions setting specific rules should thus raise this case as part of their affirmative defenses at the earliest opportunity.