In today’s news and commentary, the Sixth Circuit rejects the NLRB’s Cemex standard, and a Republican Board member hedges on his commitment not to overrule precedent without a three-vote majority.

On Friday, the Sixth Circuit rejected the NLRB’s Cemex standard (under which the Board will issue a bargaining order in the case of an employer-tainted election rather than consider rerunning the election). In Brown-Forman Corporation v. NLRB, a divided Sixth Circuit panel ruled that the Cemex standard was “an improper exercise of the Board’s adjudicatory authority.” The panel did not reach the substance of the Cemex standard. Instead, the majority reasoned that under a line of Supreme Court cases (SEC v. Chenery Corporation, NLRB v. Wyman-Gordon Company, and NLRB v. Bell Aerospace Company), the Board can only use adjudicated cases to announce new agency policies if those policies are crafted to resolve the parties’ particular dispute. Looking at Cemex, the majority argued that 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.” Rather, the majority found that, in Cemex, the Board’s opinion actually resolved the dispute under NLRB v. Gissel Packing Company and only then turned to crafting a new, unnecessary standard. The dissent disputes this characterization of the Board’s reasoning in Cemex, arguing that in that case the Board properly applied its new standard to Cemex (the party). The court remanded the case to be considered under Gissel. The consequences of this decision are that the Cemex standard is now out in the Sixth Circuit (which will revert to Gissel) and that the Board’s ability to announce new policies via adjudication may receive greater scrutiny going forward.

Finally, new reporting suggests Board member James Murphy may be hedging on his commitment not to overrule precedent without a three-vote majority. At an ABA conference last week, Murphy was originally reported to have “[not] completely close[d] the door on the possibility of setting new precedent with two votes [but] said it’s difficult for him to envision a circumstance in which the NLRB would do so.” More recent reporting provides Murphy’s direct quote, which is more ominous: “Nothing that Scott and I said about Thryv in our footnote foreclosed the possibility of reconsidering that practice in a future case . . . but I express no opinion about whether and under what circumstances I might agree to do so.” Reportedly, Murphy committed to the three-vote practice during his confirmation process in a written statement to Senator Bernie Sanders. In late January, the Republican Board members seemed to reaffirm this commitment in a footnote: “Members Murphy and Mayer find no need at this time to express an opinion whether the novel remedies announced by the Board majority in Thryv are permissible under the Act. They agree to apply that precedent in the absence of a three-member majority to overrule it.” His comments last week appear to walk back those earlier statements.