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NLRB Rejects Secret Ballot Election, the Hallmark of its Purported Neutrality

On Friday, the National Labor Relations Board (“NLRB” or the “Board”) overturned 50 years of labor law and severely limited the right of employers to insist on a secret ballot election.

In Cemex Construction Materials Pacific LLC, No. 28-CA-230115, the Board did not fully return to the Joy Silk decision in Joy Silk Mills, Inc., 85 NLRB 1263 (1949), enfd. F.2d 732 (1950) but established a rule whereby an employer must itself file an election petition when confronted by a demand for recognition from a union that claims to have collected authorization cards from a majority of employees. If the employer fails to do so, the NLRB will likely conclude that an employer has violated the law in failing to bargain with the union. Further, the Board effectually opened the door to circumstances where any unfair labor practice alleged by the union during an election period could be enough to circumvent a secret ballot election and order an employer to recognize and bargain with a union.

The decision is a huge deviation from long-established precedent. Under Linden Lumber Division, 190 NLRB 718 (1971), an employer could always insist on a secret-ballot election when confronted with a demand for recognition. Now, a union can collect a majority of authorization cards—by nearly any means necessary—and force an employer to bargain. Unions may make false promises and misstate the law to unsuspecting employees. Historically, employers could rely on the government-supervised secret ballot election to ensure a more informed, uncoerced choice on the question of union representation. No more. Elections which were previously only dispensed with in egregious circumstances warranting a Gissel bargaining order under NLRB v. Gissel Packing Co., 295 U.S. 575 (1969), may now become the exception, rather than the rule.

Under Cemex, the scale tips heavily in favor of unions. Unions can continue to organize workers by collecting a majority of signature authorization cards free from any law providing oversight or prohibiting coercive tactics. Only if the employer is astute enough to request an election do employees have any chance of a secret ballot. Consider that it is typically during an election campaign that workers learn more about representation from the employer’s perspective and have an opportunity to voice their opinions or change their minds about representation in private. This new standard undoubtedly stomps on workers’ rights of free choice while promoting unions to beef up their campaigns to gain majority fully knowing they have an easy way out of the election.

But wait, there is still so much more. Putting aside the recent shifting of the standard for what actually constitutes an unfair labor practice (see for example the recent change to work rules in Stericycle, Inc., 372 NLRB No. 113 (2023)), the Board declared the Cemex decision retroactive. So, just as the cement truck drivers and driver trainers’ votes against the union were dismissed in Cemex, so may be any employer – who, previously defeated representation in a secret ballot election but were alleged to have committed unfair labor practices by the union. Representation in those cases may now be up for grabs.

No matter what has been said about the NLRB, the Agency has always been able to ‘hang its hat’ on its willingness and ability to conduct a fair, secret ballot election on the question of union representation. The Board has now cast that last vestige of its purported neutrality asunder.