6th Circuit dumps Cemex

Even though employees voted 45–14 against the Teamsters, the NLRB ordered an employer to recognize the union. That was based on the NLRB’s 𝘊𝘦𝘮𝘦𝘹 decision.

The NLRB found that the employer committed unfair labor practices that interfered with a union election. As a remedy, the Board ordered the employer to bargain. The 6th Circuit upheld the ULP finding but denied enforcement of the bargaining order.

The bargaining order was based solely on the NLRB’s 𝘊𝘦𝘮𝘦𝘹 decision under which the Board issues a bargaining order even though there is no finding that the unfair labor practices made a fair election unlikely or impossible.

The court held that the Cemex standard was created through an unlawful exercise of adjudicatory authority because it was not created as a means to resolve the parties’ dispute or undo the effects of the parties’ violative conduct. The court said, “to formulate such a general, forward-looking policy that does not serve its case-specific remedial responsibilities, the Board would need to use the rulemaking process.”

The case is Brown-Forman v. NLRB (6th Cir 03/06/2026) [PDF]

Paul Grossman's Employment Discrimination Law Update

You can get your very own update for Lindemann, Grossman and Weirich, Employment Discrimination Law (BNA – Sixth Edition 2020), courtesy of Paul Grossman at Paul Hastings. The UPDATE is organized by book chapter, and brings the book up-to-date through February 2026 (but date on this UPDATE reads “March 2026”).

Just send a request to Paul Grossman’s secretary, Cathy Smith-Joo cathysmithjoo@paulhastings.com

NLRB Memo on Case Handling Guidance

NLRB General Counsel Crystal S. Carey issued GC Memorandum 26-03 on February 27: Case Handling Guidance [PDF].

This gives you some idea of where she is going.

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

Two recent cases—each deciding an issue of first impression—have concluded that where an employee brings multiple claims in a single suit against a party with whom she has an otherwise-valid arbitration agreement, and one of those claims alleges a “sexual assault dispute” or a “sexual harassment dispute,” the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act renders the arbitration agreement unenforceable with respect to each of the claims that comprise her case.

This includes claims that accrued prior to the effective date of the Act, and claims other than sexual assault or sexual harassment.

Bruce v. Adams & Reese (6th Cir 02/25/2026) [PDF] and Hansbrough v. Marshall Dennehey PC (Ohio Ct App 02/26/2026) [PDF].

There are other cases reaching the same result, and I’m not aware of any that disagree.

Supreme Court sleeping pill

Some decisions are just too boring for words.

The current winner is Geo Group v. Menocal (US Supreme Ct 02/25/2026) [PDF]

A former detainee at a privately operated ICE facility sued the operator claiming violation of a federal bar on forced labor and Colorado's prohibition on unjust enrichment.

The operator's defense was that it was not liable for conduct that the Government has lawfully "authorized and directed" the contractor to perform. The operator appealed from the trial court's ruling that the Government did not instruct adoption of those policies. The 10th Circuit dismissed for lack of jurisdiction, holding that the trial court's order did not qualify for interlocutory review.

The US Supreme Court affirmed. Federal contractors have a potential merits defense rather than an immunity from suit, so a pretrial order denying protection is not immediately appealable. The finality rule of 28 U. S. C. §1291 precludes interlocutory review.

Boring, but definitely a nice win for the plaintiff.

Trump v. Slaughter arguments

On Monday, the US Supreme Court will hear arguments in Trump v. Slaughter, where the issue is “Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States should be overruled.”

The outcome will determine the fate of Members of the NLRB and MSPB whom the President fired without cause.

SCOTUSblog will be liveblogging beginning at 9:55 a.m. Eastern time. Watch HERE.

Cert grant in arbitration case

The US Supreme Court granted certiorari on Friday in an arbitration case. The issue is whether a federal court that initially exercises jurisdiction and stays a case pending arbitration maintains jurisdiction over a post-arbitration Section 9 or 10 application where jurisdiction would otherwise be lacking.

That issue sounds a bit nerdish, yet it’s an important jurisdictional question that has split the federal Circuit courts.

The 2nd Circuit held that a federal court’s pre-arbitration exercise of jurisdiction serves as an anchor that gives the court continuing jurisdiction over a subsequent Section 9 or 10 application, even if jurisdiction would otherwise be lacking.

The case is Jules v. Andre Balazs Properties. The 2nd Circuit opinion is attached to the petition for a writ of certiorari HERE.

NLRB & MSPB removal update

DC Court of Appeals holds that Congress may not constitutionally prohibit the President from removing members of the National Labor Relations Board and Merit Systems Protection Board without cause.

The court said, “the NLRB and MSPB wield substantial powers that are both executive in nature and different from the powers that Humphrey’s Executor deemed to be merely quasi-legislative or quasi-judicial.  So, Congress cannot restrict the President’s ability to remove NLRB or MSPB members.”

Harris v. Bessent (DC Cir 12/05/2025) [PDF].

Another Grossman update

Paul Grossman just sent out a 118 page Employment Discrimination Law Update. If you practice employment law, this is something you must have. It’s thorough, objective, accurate, and easy to read.

The UPDATE is a personal supplement to the book he coauthored – Lindemann, Grossman and Weirich, Employment Discrimination Law (BNA – Sixth Edition 2020). The UPDATE is organized by book Chapter, and is current through October 2025. 

In an act of great generosity, Paul sends this out periodically during the year to those who ask for it. Simply send your full contact information to Paul's secretary Cathy Smith-Joo: cathysmithjoo@paulhastings.com.

Paul Grossman is a partner at Paul Hastings, and is based in Los Angeles. He is a management-side employment lawyer and a frequent speaker on employment law.

Reviewing NLRB "pecuniary harm" remedies

Commenting on federal Circuit Courts' reactions to Thryv, Inc., 372 NLRB No. 22 (2022)
Also on YouTube https://youtu.be/cILqPyZUgNQ

Another SCOTUS arbitration case

The US Supreme Court has granted certiorari to review another arbitration case. Flower Foods, Inc. v. Brock (Cert granted 10/20/2025) [Briefs].

The issue: Are workers who deliver locally goods that travel in interstate commerce—but who do not transport the goods across borders nor interact with vehicles that cross borders—“transportation workers” “engaged in foreign or interstate commerce” for purposes of the Federal Arbitration Act’s § 1 exemption?

The facts are simple:

Flowers Foods produces baked goods that are sold in supermarkets, drug stores, and convenience stores throughout the United States. Angelo Brock owns a Colorado corporation that purchased the rights to market, sell, and distribute Flowers products in territories entirely within Colorado.  Brock orders products from Flowers, and Flowers then delivers those products to a warehouse in Colorado, where they are unloaded by Flowers.  Brock then picks up the products from the warehouse and delivers them to his customers.  Most of the products Brock delivers are shipped to the warehouse from out of state. But Brock’s territory is entirely contained within the State of Colorado. He never crosses state lines to deliver Flowers products.  Nor does he unload products when they arrive at the warehouse from out of state.

Brock sued claiming Flowers misclassified him as an independent contractor rather than an employee. Flowers moved to dismiss Brock’s lawsuit in favor of arbitration. The District Court held that Brock falls within Federal Arbitration Act § 1 and held the FAA inapplicable on that ground. The court reasoned that Brock is actively engaged in the transportation of Flowers’ products across state lines into Colorado because he places orders for products that arrive from out-of-state bakeries and then delivers those products to his Colorado customers. The 10th Circuit affirmed.

Just last year the Supreme Court looked at a similar fact pattern and held that a transportation worker need not work in the transportation industry to be exempt from coverage under §1 of the FAA. Bissonnette v. LePage Bakeries (US S Ct 04/12/2024) [PDF].

Look for an oral argument early in 2026, and a decision by July.

Post-hearing briefs—Arbitration Boot Camp.

The biggest mistake I see in post-hearing briefs is ignoring their strong points and ignoring your weak points. You know they're going to bring these up. You ignore these at your peril. Bring them up yourself.

I'm going to give you seven pointers.

First — Start your brief with a one-paragraph summary that gives a nutshell of your whole case. One paragraph.

Second — Remember your theme. You developed a theme for the hearing. So I want to see that theme developed throughout the brief.

Third — You're always dealing with rules: a collective bargaining agreement, a statute, government regulation, employer’s past practice. And these rules have elements: the verbs, the nouns, the adjectives.

Fourth — Tease out those elements and tie each one to a fact … an element, a fact … an element, a fact.

Fifth — Be sure that you use headings to separate out the parts of your brief.

Sixth — If your brief is long, include a table of contents at the beginning, but after your one-paragraph summary.

Seventh — Close your brief by telling the arbitrator exactly what you want the arbitrator to do. Do not leave that to chance.

Cross-Examination—Arbitration Boot Camp.

There are two reasons to do cross-examination. One I call constructive. The other I call destructive.

Constructive cross-examination (sometimes called hitchhiking) is where you're basically going to use the other side's witness as if they were your witness. That witness has things you need to know or the arbitrator needs to know. And you simply ask a series of questions to get that information from the witness.

The other one is called destructive cross-examination, sometimes called impeachment, where you're trying to discredit the witness. Maybe you can show that witness is a liar. That's difficult and infrequent but you can show sometimes the witness has a poor memory by asking a series of questions and see if they remember, or you can show bias by showing they’re related to somebody or they socialize with somebody. You don't come right out and say Oh, well, you must be biased. No.  You just let the arbitrator form the arbitrator's own conclusions on that.

If you're going to use constructive cross-examination, you're probably not going to want to then turn around and try to impeach that witness, because you want the arbitrator to believe the constructive part of that testimony that you've got.

Let me give you six ideas.

Number one — Don't repeat the unfavorable information that the witness has already given. You’re just repeating stuff that you don't want to hear and you don't want the arbitrator to hear again.

Number two — Use short questions and use plain words. Don't go into great big long complicated stuff.

Number three — Use leading questions. People may say don't use leading questions, but this is cross-examination and you can (and Irving Younger the great expert says you must) always use leading questions that will elicit either a yes or no answer.

You came to work at eight o'clock that morning? Yes. The supervisor was already at her desk? Yes. And so on  — very simple questions.

Number four — You should usually know the answer before you ask the question. Otherwise, you might get surprised, unfavorably.

Number five — Listen to the answer. I see it happen all the time where an advocate has a series of questions they want to ask and they go bowling through that series of questions, but they miss one of the answers that would have led them down a different rabbit hole that could have been quite favorable.

Number six — Do not quarrel with the witness. Do not argue with the witness. It only makes you look bad and it usually doesn't help your case at all. Save your argument for when the case is over and you get to make an argument to the arbitrator.

More from Arbitration Boot Camp: www.RossRunkel.com/ABC

R.I.P. Humphrey’s Executor

On Monday the US Supreme Court granted certiorari to decide “Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled.” Trump v. Slaughter (US S Ct 09/22/2025) [PDF].

Whatever they decide in this case will also apply to NLRB Members.

I think we’ll see a 6-3 decision to overrule Humphrey’s Executor. It was not a well-reasoned decision in the first place, and has been undermined by recent Supreme Court decisions.

Opening Statement—Arbitration Boot Camp

Your opening statement is the one chance that you have to make a first impression.

It's the first chance you have to tell your story. And it's the only chance to warn me in advance about what I should be watching out for. So do one. Do an opening statement.

Some people say ”Well I don't want to do an opening statement” or “I'm going to wait and do the opening statement later.” No! Do the opening statement, because I come to the hearing knowing nothing, and this is your chance to get in my head.

This is your first final argument. This is your chance to tell your story before I hear the witnesses. So come into the hearing with an opening statement and start with a bang.

Give me your theme. I talked about that in the other video on the pre-hearing preparation. Tell me what your key witnesses are going to say. Tell me what your key documents are. If there's going to be a credibility problem in the case, explain to me in advance during the opening statement why your key witnesses are more credible or why their key witnesses are less credible. So when I hear those witnesses, I have your story about them in my mind, and I know what to watch for.

And when you do your opening statement, do not shy away from your weak points and do not shy away from their strong points, because you know as well as I do that they will bring them up, and it's better if you bring them up first.

So, do make an opening statement. Start with a bang. And then the hearing will go much better for you.