Unfair labor practices (ULPs); The National Labor Relations Board’s (NLRB) adjudicatory authority; Cemex Constr Materials Pac, LLC (NLRB); NLRB v Gissel Packing Co; Whether there was “substantial evidence” to support the finding of ULPs; Whether the Board properly considered “pre-petition conduct”; Extraordinary remedy of a bargaining order; Administrative law judge (ALJ)

On petition for review and cross-application for enforcement, in an issue of first impression the court held that the standard set forth in respondent-NLRB’s decision in Cemex was created through an improper exercise of its adjudicatory authority and thus, could not serve as the basis for a bargaining order. As a result, the court granted petitioner-Brown-Forman’s petition for review, denied the Board’s cross-petition for enforcement, and remanded. An ALJ ruled that Brown-Forman committed ULPs “and interfered with its employees’ attempts to unionize.” The ALJ recommended issuing a bargaining order under the standards articulated in Cemex and Gissel. Although the Board adopted the ALJ’s factual findings and recommended remedy, “it modified the reasoning. Rather than consider whether a new election could be held by applying the Gissel standard, the Board relied solely on the standard articulated in Cemex (a previous Board decision that upended over 50 years of precedent and called for the Board to issue a bargaining order as the default remedy once it set aside an election).” The court first held that there was “substantial evidence” to support the Board’s factual findings as to ULP violations, “and that the Board properly considered pre-petition conduct.” But it denied “the Board’s petition for enforcement because in issuing the bargaining order against Brown-Forman, the Board relied solely on the Cemex standard, which was created through an unlawful exercise of adjudicatory authority.” It found that the Board had “announced this significant policy change via an adjudication, and it did so without respecting the bounds of its adjudicatory authority. The Cemex standard was not derived from the case-specific facts of the contemporaneous adjudication, and the Cemex Board did not create the standard in furtherance of resolving the parties’ dispute.” As a result, the court held that “the Cemex standard was improperly promulgated, so it cannot serve as the basis for future orders.”