National Board Charts Path for Workers to Unionize Without Formal Elections

In a recent decision, the National Labor Relations Board announced a new framework for determining when employers must bargain with unions without a representation election.

On August 25, the National Labor Relations Board issued a decision in Cemex Construction Materials Pacific, LLC, with wide-sweeping implications for labor negotiations.

The National Labor Relations Board (NLRB) is an independent federal agency created in 1935 and vested with the power to safeguard employees’ rights to organize, engage with one another to seek better working conditions, choose whether or not to have a collective bargaining representative negotiate on their behalf with their employer, or refrain from doing so. The NLRB also acts to prevent and remedy unfair labor practices committed by private sector employers and unions, as well as conducts secret ballot elections regarding union representation.

According to Reuters, the Cemex case and the Board’s 3-1 decision “could provide a major boost to unions by allowing them to represent workers in certain cases when a majority sign cards in support of unionizing, rather than going through the lengthy and often litigious election process.”

Major decisions in the case and their impact on bargaining:

  • Board says majority support for unions enough to force bargaining;
  • The ruling applies when employers commit labor law violations; and
  • Revives parts of standard abandoned in the 1970s.

As such, the new bargaining framework will “effectuate employees’ right to bargain through representatives of their own choosing and improve the fairness and integrity of Board-conducted elections,” according to a press release from the Board. In practice, when unions request recognition based on majority support, employers must either recognize and bargain with a union or file a petition seeking an election. From the Board’s press release:

Under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election.  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—the Board will order the employer to recognize and bargain with the union.

Board Chairman Lauren McFerran commented on the case’s implications:

The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment. Under Cemex, an employer is free to use the Board’s election procedure, but is never free to abuse it—it’s as simple as that.

Historical changes

The new Cemex standard differs from the historical Joy Silk standard, which required an employer to bargain with a union unless it had a good-faith doubt of its majority status. The decision partially revived a doctrine from Joy Silk, named for a 1949 case in which the NLRB said employers must bargain with unions unless they have a good-faith doubt that majority support exists.

The NLRB abandoned the Joy Silk doctrine in the early 1970s after the U.S. Supreme Court imposed a different standard in the 1969 case NLRB v. Gissel Packing Co. In Gissel, the court said the NLRB could force employers to bargain when they engage in misconduct so severe that any election would be tainted.

Read the full press release from the Board.