The National Labor Relations Board (NLRB) signaled last week its preference that employers voluntarily recognize unions based on “card check” rather than a secret ballot election. In Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130, the Board also turned the current union organizing framework on its head by making it an employer’s responsibility – rather than a union’s – to file an election petition with the NLRB. This decision, in conjunction with the Board’s final election rule that takes effect in December, will make it both faster and easier for unions to organize.
Under Cemex, when a union demands recognition based on its representation that a majority of employees in a proposed unit have designated the union as their representative – usually by signing union authorization cards through a process known as “card check” – the employer must either recognize and bargain with the union or promptly file a petition with the NLRB seeking a secret ballot election to test majority status or the appropriateness of the proposed unit. However, if an employer seeking an election commits any unfair labor practices that would require setting aside the election, the Board will dismiss the employer’s petition and order the employer to recognize and bargain with the union. Cemex applies retroactively.
Before Cemex, a union could request that an employer recognize and bargain based on a majority of signed authorization cards but employers were under no obligation to agree and the onus was on the union to file a petition for an election with the NLRB. Likewise, the Board previously would order an employer to recognize and bargain with a union without an election in only extreme cases where the employer committed certain hallmark, egregious violations of federal labor law such that a free and fair election could not be held (also known as a “Gissel bargaining order” after the 1969 Supreme Court decision in NLRB v. Gissel Packing Co., 395 U.S. 575).
Critics of card check argue that this manner of selecting a union is open to abuse and coercion and that employees often do not have time to fully review and understand what they are signing. Card-check supporters counter that employers too often use delay tactics and coercion during the NLRB election process to sway employees’ free choice.
The Cemex decision does not go as far as Joy Silk Mills, Inc., 85 NLRB 1263 (1949), which required an employer to bargain with a union unless it had a good faith doubt about the union’s majority status. But Cemex is reminiscent of controversial legislation advocating for recognition by card check that never became law: the Employee Free Choice Act (first introduced in 2007) and the 2021 PRO Act.
Employer Takeaways
The Cemex decision, coupled with the Board’s final union election rules effective in December, will make it faster and easier to form unions in private sector workplaces. Employers should be prepared to respond quickly to a union’s demand for voluntary recognition and determine whether an election petition is necessary. Click here to read our blog post on the Board's final election rules.
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