A recent Sixth Circuit decision striking down an order by the National Labor Relations Board (NLRB) that an employer bargain with a union after the union failed to win an election could lead the NLRB to reconsider its prior standard for issuing such orders—the 2023 Cemex ruling—and raises questions about how the board changes precedent through its decisions. The court held that the NLRB could not rely on its Cemex decision to require the company to bargain with a union, describing the board’s decision as “rulemaking under the guise of an adjudication” and sent the case back to the NLRB for reconsideration.
Hugh Murray, chair of McCarter’s Labor & Employment Practice, says the majority laid out a very narrow view of the board’s authority that could lead future boards to proceed more cautiously when attempting to lay out new policies in adjudication. “I do think it will create some caution as the board announces new standards where they will at least draft an opinion in a way that makes it necessary to the case before it.”