In its decision in Cemex Construction Materials¹ (now on appeal), the National Labor Relations Board (NLRB) abandoned 50 years of precedent and made it decidedly easier for unions to establish majority support without conducting a Board-supervised secret-ballot election.

The Board’s new approach, if upheld, likely will result in fewer secret-ballot elections, thus depriving employees of the opportunity to express their true beliefs regarding union representation in the sanctity of the voting booth.

The Concept of Majority Support

An employer has no duty to recognize or bargain with a union that represents less than a majority of the employer’s employees. Although majority status is pivotal to determining an employers’ statutory duties, the National Labor Relations Act does not specify how a union’s majority support should be determined.

Over the years, two methods generally have been accepted: authorization cards signed by a majority of employees and Board-conducted secret-ballot elections.

The Board and the courts consistently have found that Board elections are the preferred method of testing employees’ majority support for unions.² As the Supreme Court recognized in Gissel Packing, “secret elections are generally the most satisfactory – indeed the preferred – method of ascertaining whether a union has majority support.” According to the Court, union authorization cards are “admittedly inferior to the election process.”

However, the Board’s recent decision in Cemex Construction Materials begs the question of whether the Board still favors secret-ballot elections over voluntary recognition through authorization cards, as it has historically.

Since its 1971 decision in Linden Lumber Division,³ the Board has taken the position that an employer does not violate section 8(a)(5) by its refusal to accept evidence of majority status other than the results of a Board election.

In short, under Linden Lumber, an employer who was faced with a demand for recognition based on authorization cards had the right to deny recognition and insist that the union file a petition for a secret-ballot election.

In Cemex, the Board overturned Linden Lumber in favor of a new approach that strongly favors voluntary recognition over the use of secret-ballot elections.

Summary of the Cemex Standard

Under the Cemex standard, an employer who is faced with a demand for voluntary recognition has three options.

First, the employer could agree to recognize the union based on authorization cards signed by a majority of the employees.

Second, the employer could reject the union’s demand for voluntary recognition and, within two weeks, file its own petition (an RM petition) for a secret-ballot election.

Lastly, an employer could refuse to voluntarily recognize the union and elect not to file an RM petition. In that situation, the employer opens itself up to an 8(a)(5) refusal to bargain charge. In short, an employer who elects to do nothing does so “at its peril.”⁴

This new standard for voluntary recognition must be viewed in the context of changes that the Cemex decision made to the standard for obtaining a Gissel bargaining order. According to Cemex, it is the Board’s new goal to make remedial bargaining orders “more readily available.”⁵

In the past, if an employer engaged in an unfair labor practice (ULP) leading up to an election, the Board typically would order a rerun election. Under the standard announced in Cemex, however, that no longer will be the case.

Under the new standard, if an employer engages in an unfair labor practice leading up to the election, the Board will issue an order requiring the employer to recognize and bargain with the union, i.e., a “bargaining order.”

As the dissenting opinion in Cemex made clear, “just one is all it takes” – one ULP will be sufficient to set-aside the election results and warrant issuing a bargaining order.⁶

Although the Board traditionally has taken the position that secret-ballot elections are the most reliable way in which to determine majority support, the Cemex decision does nothing to encourage the use of such elections.

In fact, the decision does the opposite. Under the new Cemex standard, the only opportunity that exists for a secret-ballot election is if the employer files an RM petition in response to the union’s demand for voluntary recognition. (Admittedly, the union still has the option of filing its own election petition but the Cemex standard eliminates the incentive to do so.)

And there is no guarantee that the election results actually will be controlling given the Board’s new approach to setting aside elections results in favor of issuing a Gissel bargaining order.

The Problem with Cards

There is a strong argument that authorization cards are an inherently unreliable indicator of majority support. The majority opinion in Cemex claims that the Gissel Court rejected the argument that cards are inherently unreliable.⁷

A contrary view would be that the Supreme Court meant that authorization cards are only more reliable than a tainted election, as what the Court actually said was that, “where an employer engages in conduct disruptive of the election process, cards may be the most effective – perhaps the only – way of assuring employee choice.”M⁸

As the dissenting opinion in Cemex recognized, “signing an authorization card is an observable and, often, observed act, and employees may sign a union card not because they want the union as their bargaining representative but because they feel pressured by their co-workers to sign.”⁹

The Court noted empirical studies have found that union authorization cards, “provide an inferior means of determining the will of the majority compared to Board-conducted secret-ballot elections.”¹⁰

In a study that was cited by the dissenting opinion, it was found that “even where the union had authorization cards from between 50 and 70 percent of the employees, it won only 48 percent of the elections.”

The dissenting opinion cited a second study finding that “eighteen percent of those signing authorization cards did not want union representation at the time they signed.”¹¹

Another realized problem with the authorization card approach is that it may force employees to make a less-informed choice about union representation. Card-signing campaigns often are conducted without the employer’s knowledge, which can deprive employers the opportunity to express their opinions regarding the formation of a union, and thereby deprive the employees of an opportunity to fully consider arguments both for and against union representation.

Does this Board Truly Support Employee Free Choice through Secret-ballot Elections?

Most would agree that the new Cemex methodology is designed to promote the use of voluntary recognition through card checks.

Some legal scholars question the motive for this new methodology, given the historical preference for elections and the fact that the Cemex approach will deprive the employer of an opportunity to conduct a campaign in situations in which it was unaware of union organizing until it was presented with the authorization cards.

Some employers will undoubtedly take the position that the Board harbors antipathy toward employer informational campaigns. This is true in part because Cemex comes on the heels of the Board’s recently adopted new election rules that severely limit the time in which employer may conduct such campaigns.

The new Cemex approach, when viewed in this context, may be seen by employers as an end-run to deprive them of the right to conduct an informational campaign in response to the union’s organizing efforts.

Conclusion: 50 Years of Precedent Abandoned

The Cemex decision abandons more than 50 years of Board and Supreme Court precedent by encouraging the use of voluntary recognition at the expense of secret-ballot elections.

As the dissenting opinion in Cemex emphasized, “it is the rights of employees that Congress placed at the heart of the Act, and those rights are better served by Board-secret-ballot elections than by union authorization cards.”¹²

Cemex already has filed its appeal with the Ninth Circuit Court of Appeals.

This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Cemex Construction Materials, 372 NLRB No. 130 (August 25, 2023) (now on appeal).

² See, e.g., NLRB v Gissel Packing Co., 395 US 575, 602 (1969).

³ Linden Lumber Division, 190 NLRB 718 (1971).

⁴ Id., at 26.

⁵ Id., at 27.

⁶ Id., at p. 41.

⁷ Id., at p. 33.

⁸ Gissel, 395 US at 602.

⁹ Id., at 42.

¹⁰ Id., at 43.

¹¹ Id., at 43.

¹² Id., at 42.