NLRB- Cemex Decision
Regulatory Topic: Cemex Decision/ Card check
Regulatory Agency: NLRB
Much like Americans voting in elections for their president and other office holders, the use of a secret ballot for union elections is strongly supported by workers including in union households. Secret ballots have also long been considered a more reliable determinant of what level of worker support there is for unionization by U.S. Courts as well as the National Labor Relations Board (NLRB).
While secret ballot union voting has been commonplace for decades, many union and political leaders advocate instead for “card check,” a process where initial signatures gathered on union authorization cards are to be used as yes votes for unionization, skipping the process of using a secret ballot election to officially determine union representation. For instance, NLRB General Counsel Jennifer Abruzzo has regularly pushed for support of card check, and President Biden and supporters of the PRO Act have endorsed legislation that among other things could limit secret ballot elections.
On August 25, 2023, the Biden-appointee led NLRB released a decision in Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters, 28-CA-230115, which allows the NLRB to recognize a union through a card check process unless the business petitions for a secret ballot election in a limited time frame. Furthermore, any unfair labor practice (ULP) committed by a business, as subjectively determined by the NLRB, can lead to instant recognition of a union as a monopoly bargaining agent regardless of worker preference.
The NLRB, formed as part of the 1935 National Labor Relations Act (NLRA), oversees private sector union elections and related matters across the United States. By using labor cases brought before the board or advancing new rules, the NLRB can attempt to enforce new policies that American workers and businesses must comply with, including how unions are recognized.
The NLRB through its Cemex ruling is attempting to diminish the use of secret ballot elections in private workplaces to determine union representation, instead stacking the process in favor of card check, a public signature process where workers have historically been subjected to deception, intimidation, and coercion to provide signatures that may not truly represent their stance on a union.
While some employers currently choose to recognize unions voluntarily, or unfortunately do so to avoid or end corporate campaigns by unions against them that jeopardize their business, for well over 50 years a majority of unions have been formed through secret ballots.
The 1969 NLRB v. Gissel Packing Co. Supreme Court decision and 1974 Linden Lumber NLRB decision (see below) helped facilitate regular use of secret ballots, but prior to that the 1949 NLRB Joy Silk decision (see below) established the Joy Silk doctrine. This doctrine required employers to recognize unions through card check unless they could establish “good faith doubt” in there being majority support for the union, which could trigger a secret ballot election. Even then, if businesses committed an unfair labor practice in the eyes of the NLRB, the union could be instantly recognized. The NLRB had significant leeway in determining the merits of unfair labor practice charges, making even normal employer communication with workers about concerns over unionization potential grounds for a ULP that granted a union bargaining power without an election.
The new CEMEX decision is very similar to the Joy-Silk doctrine, which was largely rejected by courts including in the NLRB v. Gissel Packing Supreme Court decision on First Amendment and other grounds. Both require an employer to petition for a secret ballot election, not the union seeking recognition, and both allow the NLRB to grant instant bargaining power to a union should it subjectively determine the business to have committed a ULP during any part of a union organizing and election process. As highlighted, this can be particularly concerning when normal free speech communication by employers on unionization could be subject to an NLRB ULP charge. The only substantial difference is that an employer does not have to substantiate “good faith doubt” in the majority support of unions to petition the NLRB for an election.
What is a secret ballot election?
In contrast with card check procedures that subject workers to union pressure in pursuit of their public union authorization signatures, the secret ballot process allows workers to privately vote with their conscience on whether or not they want union representation. A secret ballot can be requested by a union with over 30% support via card check, but when unions receive over 50% support via card check, they typically ask an employer to recognize them directly. At this point, employers can choose to recognize a union or instead request a secret ballot election to be conducted by NLRB.
Brief NLRB timeline on Representation Procedures:
- 1949 – Joy Silk Mills, Inc. and United Textile Workers of America 85 NLRB 1263. https://casetext.com/admin-law/joy-silk-mills-inc. In this case, the NLRB established that card check could be used to force businesses to recognize a union for bargaining unless they established good faith doubt in majority of support for the union by workers.
- 1969 – NLRB v. Gissel Packing Co., 395 U.S. 575. The U.S. Supreme Court, in addition to protecting free speech of employers to communicate viewpoints during unionization campaigns, established an allowance for employers to not accept a union for bargaining purposes based on card check, instead allowing them to seek a secret ballot election. However, significant interference by employers in election matters could lead to immediate recognition of a union.
- 1974 – Linden Lumber Division, Summer & Co. v. NLRB, 419 U.S. 301. In this decision, the NLRB formally clarified that businesses did not commit unfair labor practices by rejecting evidence of a union’s majority support through non-NLRB board election procedures. Instead, unions would have to seek an election if employers rejected their petition to be recognized. https://supreme.justia.com/cases/federal/us/419/301/
- 2023 – CEMEX Construction Materials Pacific LLC. https://www.nlrb.gov/news-outreach/news-story/board-issues-decision-announcing-new-framework-for-union-representation
- NLRB’s Cemex Decision – Not Exactly Card Check, but Awfully Close. By Michael J. Lotito, Rachel Ring, and Michelle Devlin. https://www.littler.com/publication-press/publication/nlrbs-cemex-decision-not-exactly-card-check-awfully-close
- NLRB’s Cemex Decision Denies Workers’ Rights to Make Free and Fair Choice About Unions. Sean Redmond. https://www.uschamber.com/employment-law/unions/nlrb-cemex-decision-denies-workers-rights-to-make-fair-choice-union#:~:text=The%20National%20Labor%20Relations%20Board,held%20dream%20of%20labor%20unions.
- Protecting the Secret Ballot: The Dangers of Union Card Check. Vincent Vernuccio. https://www.mackinac.org/S2019-09
- Why You Should Care About the CEMEX Decision. Isabel Blank. https://americansforfairtreatment.org/2023/09/11/why-you-should-care-about-the-cemex-decision/
- Workplace Democracy Dies in Darkness at the NLRB. F. Vincent Vernuccio. https://www.nationalreview.com/2023/09/workplace-democracy-dies-in-darkness-at-the-nlrb/
- NLRB WEAKENS SECRET-BALLOT ELECTIONS IN UNION CAMPAIGNS, INCREASING UNIONIZATION PERILS. Michael A. Pavlick, Taylor J. Arluck. https://www.klgates.com/NLRB-Weakens-Secret-Ballot-Elections-In-Union-Campaigns-Increasing-Unionization-Perils-8-31-2023