Article contributed by Jaclyn K. Ruocco, Esq., Ellenoff Grossman & Schole LLP
On March 6, 2026, the U.S. Court of Appeals for the Sixth Circuit issued a significant decision in Brown-Forman Corp. v. National Labor Relations Board. The case addresses how the National Labor Relations Board (Board) may impose bargaining orders when employers interfere with union organizing campaigns.
A bargaining order is a remedy requiring an employer to recognize and negotiate with a union, even if the union has not won a formal election, when employer misconduct has undermined employees’ ability to freely choose whether to unionize. While the decision applies directly only within the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, it could influence courts in other jurisdictions as they evaluate similar disputes. For restaurant employers who may be facing increased union activity, the ruling provides important guidance on what conduct during organizing campaigns may violate federal labor law.
The dispute arose at Brown-Forman’s Woodford Reserve distillery in Kentucky. Employees were unhappy with their wages and began discussing unionization, which led to the workers contacting the local Teamsters union. As organizing activity grew, the employer announced several new benefits, including a $4 per hour wage increase, more opportunities for pay raises, and greater flexibility in using vacation time. Shortly before the union election, the company also distributed bottles of bourbon to employees.
Although these changes were popular with employees, the Board determined that the employer committed unfair labor practices by granting benefits during the organizing campaign in order to undermine union support. The Board concluded that these actions interfered with employees’ rights under Section 7 of the National Labor Relations Act (NLRA), which protects workers’ ability to organize and engage in collective activity. The Board then imposed a bargaining order requiring the employer to recognize and negotiate with the union even though the union lost the election. The Board based this remedy on its 2023 decision in Cemex Construction Materials Pacific, which created a new standard for issuing bargaining orders when an employer commits unfair labor practices during a union campaign.
The Sixth Circuit rejected the Board’s bargaining order framework established in Cemex. The court explained that the usual and preferred way to determine whether employees want a union is through a secret ballot election. Ordering an employer to recognize and bargain with a union without an election is considered an unusual remedy and should only be used when an employer’s misconduct has made it impossible to hold a fair vote. For restaurants, this portion of the decision provides some relief. The court signaled that the Board cannot automatically impose bargaining orders whenever an employer commits unfair labor practices. Instead, the Board must follow established legal standards and demonstrate why an election (instead of a bargaining order) cannot fairly determine employee preferences.
At the same time, employers should recognize that the ruling does not eliminate the risk of bargaining orders entirely. If employer misconduct during an organizing campaign is severe enough, the Board may still require an employer to recognize and bargain with a union without holding an election. Courts and the Board have historically issued these orders in cases involving serious unfair labor practices, such as threats of job loss, interrogation about union support, retaliation against employees who participate in organizing activity, or the discharge of union supporters during the critical period before an election. These types of violations may lead the Board to conclude that a fair election is no longer possible and that a bargaining order is the only effective remedy. This is particularly so in small workplaces like restaurants where employer misconduct can quickly influence the entire workforce.
Another key takeaway from the decision is that employers cannot attempt to influence union elections by granting new benefits during an organizing drive. Even actions that appear positive such as wage increases, bonuses, or gifts may be unlawful if they are intended to discourage employees from supporting a union. The court cited longstanding precedent stating that “well-timed increases in benefits” can signal to employees that future benefits depend on rejecting union representation.
For restaurants, this issue can arise easily. A restaurant owner might consider raising wages or introducing new scheduling flexibility after learning that staff are discussing unionization. If those changes are implemented specifically to undermine organizing efforts, they could be viewed as unlawful interference under federal labor law. The decision also highlights the importance of careful communication during organizing campaigns. Employers remain free to express opinions about unionization, but they must avoid conduct that could be interpreted as coercive or retaliatory. Actions such as threatening employees or disciplining workers for discussing union activity can lead to unfair labor practice charges.
For restaurants, the decision underscores the need for careful compliance with federal labor law. Management responses to union activity should focus on lawful communication and workplace improvements that are not tied to discouraging union support.
Jaclyn K. Ruocco is a partner in the Firm’s Labor and Employment Practice Group. Ms. Ruocco represents hospitality companies in all areas of federal, state and local labor and employment law, including traditional labor relations, employment counseling, and employment litigation defense.
As part of her practice, Ms. Ruocco has broad experience in negotiating and interpreting labor contracts and separation agreements, conducting management and employee trainings, and devising company policies. Ms. Ruocco can be reached at (212) 370-1300 or jruocco@egsllp.com.
