The National Labor Relations Board overturned decades of precedent at the behest of union bosses during the Biden administration. There is a lot of damage to undo, but President Donald Trump now has an opening to advance worker freedom and boost economic growth by reversing a particularly boneheaded policy from 2023.
Last Friday, the U.S. Court of Appeals for the Sixth Circuit ruled that the NLRB overstepped its authority three years ago in a case against Cemex, the cement company. The NLRB’s decision had made it easier for unions to avoid the hassle of secret-ballot elections that give workers the power to decide for themselves whether they want to unionize.
Under the National Labor Relations Act, unions can present signatures from workers to an employer and ask it to voluntarily recognize the union as the bargaining agent for the workplace. But unions have all sorts of ways to pressure and deceive workers into giving their signatures. The law gives employers the ability to ask for a secret-ballot election, administered by the NLRB, to determine whether most workers actually want to unionize.
Yet the NLRB ruled in the Cemex case that almost any unfair labor practice would be cause for the agency to rule that a fair election would be impossible and therefore order the employer to bargain with the union, regardless of what the workers want. Unions almost always allege that employers use unfair labor practices, no matter what they do, so the decision effectively gave the NLRB power to bypass secret-ballot elections whenever it wants to. Another reason the Cemex case was so egregious is that the Biden appointees used the adjudication of a single dispute as a backdoor to issue a new set of onerous rules on every American company.
In the case decided by the Sixth Circuit, Brown-Forman challenged the basis for the NLRB’s Cemex ruling and won. The supposedly unfair labor practice committed at its Woodford Reserve bourbon distillery was giving workers a $4 per hour raise, expanding merit-based salary increases, offering more vacation time and providing free bottles of bourbon. The employees voted 45 to 14 against unionizing, but the NLRB ordered the company to bargain with that union anyway.
The advantage of secret-ballot elections is that workers are free of coercion by unions or employers when deciding whether they wish to unionize. It also ensures that their decisions are anonymous, so they won’t fear retaliation or harassment by aggressive union organizers or the people who pay their salaries. A secret ballot is far more likely to reflect their true views.
Consider what happened last year in North Huntingdon, Pennsylvania: EMS workers were unionized after their employer voluntarily recognized a union. But when workers finally got the chance for a secret-ballot election this month, they voted unanimously to kick out the union.
It’s not as though unions fare poorly in secret-ballot elections. They have won more of them than they have lost in every year since 1997. Their win rate was 81 percent in the first half of 2025. If employees want to collectively bargain, unions have nothing to fear.
Here’s another galling twist: Even though the Sixth Circuit overturned the decision against Brown-Forman, the NLRB doesn’t change its rulings unless the Supreme Court weighs in. There’s no reason to wait that long.
The Coalition for a Democratic Workplace is a group of employer organizations that supports the right to secret-ballot elections. On Thursday, it formally petitioned the NLRB to use administrative rulemaking to reverse the Cemex standard. (The CDW is also asking the NLRB to issue a new rule overturning a 2024 decision against Amazon, which is not a CDW member but was founded by Post owner Jeff Bezos.)
Rulemaking is not common historically, but the NLRB needs to clean up the mess it made. The board traditionally does not overturn precedent unless three of the board’s five members approve. The board currently has two Republicans, one Democrat and two vacancies, making that impossible. However, the NLRB also has the power to do administrative rulemaking like other federal agencies. The law only requires that there be a quorum of three members to do so, whether they support it or not.
An even better solution would be for Congress to pass the Employee Rights Act, introduced by Sen. Tim Scott (R-South Carolina) and Rep. Rick Allen (R-Georgia), which guarantees secret-ballot elections. Workers suffer when their rights ebb and flow based on which party controls a board of bureaucrats in Washington.
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