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NLRB Paves the Way for Union Representation without Elections

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Authors: Gregory Hoff

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In a recently issued decision, the National Labor Relations Board made it much easier for unions to organize workplaces without a secret ballot election, and  put the burden on employers to file a petition (RM) for such an election. In Cemex Construction Materials Pacific Inc., the Board established a new bargaining order standard under which employers that commit unfair labor practices during a union election campaign will be required to recognize and bargain with that union if the union has previously showed majority support among employees. The decision reflects a revival – in part – of a decades-old precedent (Joy Silk), and a radical departure from years of established federal labor law.

Key Takeaways:
·       The Board’s decision in Cemex essentially paves the way for unions to gain recognition more easily without having to go through a full secret ballot election.
·       Merely showing that the union enjoys support from a simple majority of employees will often be enough, as requiring the filing and finding of an unfair labor practice may amount to little more than a rubber stamp in practice.
·       The burden will now be on employers facing a recognition request from a union to file a petition for a secret ballot election within two weeks – except for special unforeseen circumstances – of receiving that request, or else be required to recognize and bargain with that union.
·       Employers facing a union campaign will have to be extremely vigilant to avoid any improper conduct during the campaign that may result in a bargaining order. In practice, this may be virtually impossible under the current Board.

Background: Currently, absent an employer voluntarily recognizing a union, a secret ballot election is generally the only path for a union to gain recognition as the exclusive bargaining representative of a private sector workforce. Either a union with a 30 percent “showing of interest” of support traditionally obtained through signed union authorization cards (can be done electronically) of employees in the proposed unit, or an employer, in response to a union’s request for recognition, can petition the NLRB to hold a secret ballot election. Under certain limited circumstances, the Board will issue bargaining orders (Gissel bargaining orders) where a union has obtained a majority of employees in the proposed unit’s signed union authorization cards and an employer has committed unfair labor practices that are so egregious as to thoroughly destroy any possibility of a fair election.

Joy Silk, Gissel: Over 70 years ago in Joy Silk Mills, Inc. 85 NLRB 1263 (1949), the Board established that a union could obtain a bargaining order from the Board if it had authorization cards from a majority of employees and the employer, after refusing recognition, had committed unfair labor practices before the election had begun. The Board abandoned Joy Silk after the Supreme Court decided NLRB v. Gissel Packing Co. 395 U.S. 575 (1969), under which, as mentioned above, a bargaining order will only be issued if the unfair labor practices in question prevent any chance of a fair election. Democrat and Republican Boards have not used the Joy Silk standard in more than 50 years, and Gissel bargaining orders themselves are rare.

A return to a modified Joy Silk: The Board’s decision today in Cemex adopts a new standard embodying much of the original Joy Silk decision. Specifically, under the new framework, when a union requests recognition on the basis that a majority of employees support the union (e.g. through signed authorization cards), an employer must either recognize and bargain with the union or file a petition seeking an election within two weeks. However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and—rather than re-running the election (which was previous standard practice)—the Board will order the employer to recognize and bargain with the union. 

Card check in practice? Organized labor has long pressed for so-called “card check” recognition, through which unions can bypass elections and be certified as a bargaining representative solely through a showing of signed authorization cards from a simple majority of employees. Card check is a major part of the proposed PRO Act, and General Counsel Abruzzo pushed for the Board to essentially make it law as part of this case. While the Board’s decision in Cemex stops short of doing just that, because it requires the presence of an unfair labor practice before a bargaining order is triggered (in addition to the showing of majority support), in practice, the new framework may function the same way, particularly under the current Board.

This is because employers are almost always accused of unfair labor practices during union election campaigns, and because the current Board is clearly predisposed to siding with the union in such cases. This reality is recognized by Member Kaplan in his partial dissent in Cemex, noting that even “minor or less extensive unfair labor practices” will now result in bargaining orders (rather than the “egregious” standard under Gissel). Further, as Member Kaplan notes, because of the Board’s recent decision in Stericycle, under which workplace rules receive renewed strict scrutiny, “it is virtually impossible for an employer not to commit...an unfair labor practice” during a union election campaign that would result in the Board ordering an employer to recognize and bargain with a union without an election. In short, even if the Board’s decision in Cemex does not actually codify card check as a matter of law, in practice, it may do just that.

Outlook: The case may be appealed in federal court, but it is unclear at present whether the Board’s new standard will be overturned. For now, employers must reckon with a new reality under which it may go from a union-free workforce to having to recognize and bargain with a union its employees never actually voted for – and perhaps only in a matter of weeks, given the Board’s recently codified changes to election procedures that streamline the election process for unions and greatly reduce the overall election timeline (see the email I sent earlier today for more details on these changes). It is also worth noting that this monumental decision – along with other recent significant Board activity – was issued while the Board currently operates with a 3-1 Democrat majority and no pending Republican nominee to fill the fifth seat. Employers can expect a steady stream of similarly precedent-changing activity as long as there is a Democratic majority, and particularly where, as is the case now, there is only a lone Republican Member.  

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