Card Check Bargaining Order Theory Rejected by Appellate Court 

During the Biden administration, a new concept was adopted by the Biden-appointed NLRB in which employers were required to bargain with a union based on a card-check majority rather than having a secret ballot election conducted. In one of the two most controversial rulings during the Biden-era NLRB, the Board rendered a decision basically saying that if an employer committed any unlawful conduct prior to the election, it would prompt the Board to issue a mandatory “bargaining order” requiring union representation utilizing card-check concepts.  Additionally, if the company after receiving an NLRB petition for an election did not within two weeks either accept the union or petition the NLRB to conduct an election, the Board would also automatically issue an order requiring the company to recognize and bargain with the union.  This Cemex case doctrine in essence granted unions a “card-check” law similar to what they had been unsuccessfully seeking for many years in the PRO Act.  Cemex Construction, 372 NLRB No. 130 (2023).

Ever since the Cemex decision was issued in August 2023, employers have hoped to see the NLRB precedent overturned, an issue now pending in the federal Ninth Circuit Court of Appeals.  However, on March 6, 2026, the Sixth Circuit Court of Appeals found that the Cemex standard was invalid for a different reason, in that it was an improper exercise of the NLRB’s adjudicatory authority, and therefore could not serve as a basis for a bargaining order.  The Sixth Circuit found that the Cemex standard wasn’t an adjudication, but instead was a rule of general applicability that the Board deemed necessary to carry out its preferred administration of the Act, not one derived from the facts of the case that was before the Board.  The Sixth Circuit felt that this was the type of ruling that instead fits under the Board’s rulemaking power, rather than its power to adjudicate cases.  Brown-Foreman Corp. v. NLRB, Nos. 24-2107/25-1060 (Sixth Cir. 3/1/26).

Editor’s Note:  In spite of the Sixth Circuit ruling invalidating the Cemex case ruling, the result was based on procedural grounds rather than on the grounds of substantive law.  Issues like those arising under Cemex can still be litigated before the NLRB, but the Cemex ruling will no longer be a binding precedent.  It is likely that the Trump Administration will seek an NLRB ruling under its adjudicary authority to reverse the results of the Cemex ruling, even if it is no longer a binding precedent.

This article is part of our April 2026 Newsletter. 

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