Since recovering from last year’s government shutdown and after regaining a quorum in December, the NLRB has begun working through its year-long backlog, issuing several significant decisions that, coupled with actions from the judiciary, signal a meaningful shift in labor law under the Trump administration.
Among the Board’s most notable recent decisions is Longmont United Hospital, 374 NLRB No. 52 (2026), in which the Board declined to expand the remedies available in certain refusal-to-bargain cases. For employers to dispute the certification of a union, they must refuse to bargain with the union and allow the NLRB to commence a review. Historically, if the NLRB determines that the union was properly certified, the employer would be ordered to cease their unlawful conduct and bargain with the union.
In Longmont, a nurses’ union asked the NLRB to consider a new approach to allow the union to be compensated for its lost opportunity to bargain while its employer (in this case a hospital) challenged their certification. This approach was first proposed by former NLRB General Counsel Jennifer Abruzzo, who was fired by President Trump in early 2025. In a significant win for the employer, the Board declined to adopt the proposed remedy. The Board reasoned that speculating about what the union was owed for its lost bargaining opportunity would “undermine” the prospect of reaching an agreement by effectively adding a second layer to negotiations: First, the parties would have to bargain over how to compensate the nurses for the lost bargaining opportunity, and then move on to bargaining over the terms of a new contract. Longmont thus confirms that employers may refuse to bargain with a union until the NLRB confirms proper certification, without risk of monetary penalties. However, the Board can still require bargaining or public notice posting.
Possible Changes to Come
The current composition of the Board—one Democrat and two Republicans—makes precedent-altering decisions unlikely, since any such decision by a three-member Board would have to be unanimous. However, Trump appointees currently dominate the federal judiciary, and several Biden-era Board rulings face potential reversal in the near future.
For example, the Board’s controversial 2023 Cemex decision is currently being litigated in the Sixth and Ninth Circuits. In Cemex, 372 NLRB No. 130 (2023), the Board held that if a majority of employees in an appropriate bargaining unit designates a union as its representative through authorization cards, and the employer refuses the union’s request for recognition, the Board will issue a bargaining order unless the employer files a timely petition for a Board election. This is referred to as a Cemex bargaining order. The Board also held that if the employer files a timely election petition but commits a meaningful unfair labor practice during the lead-up to the election, the Board will issue a bargaining order. In so doing, the Board overturned the longstanding precedent established in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), which held that an employer would only be ordered to recognize and bargain with a union if its unfair labor practice was so egregious as to undermine any possibility of a fair election.
In Brown-Forman Corp. v. NLRB (6th Cir., 2026), however, the Sixth Circuit rejected the Cemex framework. While it agreed that the employer committed unfair labor practices, it disagreed with the remedy ordered by the Board. Instead, the Sixth Circuit held that the NLRB improperly created the Cemex standard through adjudication rather than through formal rulemaking procedures, including the notice-and-comment requirements of the Administrative Procedure Act. The Sixth Circuit remanded the case for consideration under Gissel, emphasizing that bargaining orders are an “extraordinary remedy” unsuitable for blanket rules. Although the ruling only applies to states within the Sixth Circuit, it may embolden broader challenges to the Cemex standard and could call into question other frameworks, including those governing independent contractor classification and captive audience meetings, should additional courts adopt similar reasoning.
Our Experience in These Areas
The labor and employment law landscape is constantly changing, so it is imperative that employers stay current with the developments affecting their business. The Labor and Employment team at Broadfield U.S. has extensive experience representing employers in all labor-relations matters, including union organizing campaigns and representing management in NLRB proceedings. Employers with questions about these recent developments or who need guidance on defending an NLRB charge are encouraged to reach out to a member of the team.
