The first half of 2026 saw federal courts increase their scrutiny of the National Labor Relations Board's decisions, while the agency tinkered within Biden-era policy as it awaits the confirmation of a third Republican member.

Here, Law360 looks at some of the most significant labor law decisions that came out in the first half of the year.

6th Circ. Questions NLRB's Use of Adjudication

Experts generally agreed that the most significant labor decision of the first half of 2026 was the Sixth Circuit's March ruling in Brown-Forman Corp. v. NLRB , in which the court struck down the board's order requiring a distiller to bargain with a union. The board issued the order under a standard it laid out in a 2023 decision called Cemex Construction Materials Pacific LLC, which loosened the standard for the board to order employers to bargain with unions because of labor law violations they committed before an election.

For decades before Cemex, the board followed a standard the U.S. Supreme Court endorsed in NLRB v. Gissel Packing , under which the board would order an employer to bargain because of election-related misconduct if it determined it was unlikely it would be able to conduct a fair rerun election. Under Cemex, the board will issue a bargaining order if it finds an employer committed labor law violations that would normally warrant setting the election aside.

The Sixth Circuit held that the board engaged in "rulemaking under the guise of an adjudication" in the Cemex decision because the new bargaining order standard was not tailored to the dispute at issue in the case. As a result, the appeals court said the board could not use the Cemex decision as the basis for a bargaining order against Brown-Forman.

The Brown-Forman decision is notable because in the few cases in which the NLRB has issued bargaining orders under Cemex, it has also found a bargaining order was appropriate under Gissel. The Ninth Circuit and the D.C. Circuit have also upheld NLRB decisions that included a Cemex bargaining order, but did not analyze the Cemex standard because they also found a Gissel order was appropriate.

Adam Keating, a partner at Duane Morris LLP who represents employers, said the Brown-Forman decision was important as the first appellate decision to directly cast doubt on the Cemex framework. While the NLRB does not typically consider itself bound by decisions of a federal appeals court in proceedings outside the circuit in which it was issued, Keating said the Brown-Forman decision should give an argument to employers challenging Cemex bargaining orders in other appeals courts.

"Employers should still run disciplined campaigns and avoid any last-minute changes that could be characterized as influencing a vote," Keating said. "But if the board does seek a bargaining order based on Cemex, now you have a meaningful appellate argument the remedy is procedurally and legally vulnerable." [...]

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