The National Labor Relations Board (NLRB) recently issued a decision that will make it substantially easier for unions to organize. In Cemex Construction Materials Pacific, LLC, the NLRB overturned 50 years of precedent and adopted a new approach designed to encourage unions to seek voluntary recognition of their status as the representative of the employer’s employees through the use of authorization cards. 372 NLRB No. 130 (Aug. 25, 2023). This new approach will place a premium on an employer’s ability to detect early warning signs of a “card campaign” and what it can and cannot do in response.
An employer has no duty to recognize or bargain with a union that represents less than a majority of the employer’s employees. Over the years, two methods generally have been accepted for determining majority support: authorization cards signed by a majority of employees (i.e., a “card campaign”) and NLRB-conducted secret-ballot elections. Prior to Cemex, the NLRB and the courts historically found that NLRB elections are the preferred method of establishing employees’ majority support for unions. According to the U.S. Supreme Court, “union authorization cards are admittedly inferior to the election process.” Nat’l Lab. Rels. Bd. v. Gissel Packing Co., 395 U.S. 575, 602 (1969).
Despite the fact that the NLRB and the courts have recognized that authorization cards are an inferior method of establishing majority support for a union, the NLRB’s new approach in Cemex is designed to encourage voluntary recognition through the use of such cards.
Under the Cemex standard, an employer that is faced with a demand for voluntary recognition now has three options. First, the employer could agree to recognize the union based on authorization cards signed by a majority of the employees. Second, the employer could reject the union’s demand for voluntary recognition and, within two weeks, file its own petition (an RM petition) for a secret-ballot election. Note that this second option now places the burden on the employer to seek an election. Lastly, an employer could refuse to voluntarily recognize the union and not elect to file an RM petition. In that situation, the employer risks an unfair labor practice (ULP) charge for failing to bargain in good faith. In short, an employer who elects to do nothing does so “at its peril.”
The Cemex approach is a drastic departure from the legal standard that had been in effect. Prior to Cemex, when faced with a demand for recognition based on authorization cards, an employer simply could reject the cards and force the union to seek a secret-ballot election. Under the new Cemex standard, if an employer rejects the authorization cards, the burden now is on the employer to file a petition for a secret-ballot election. By shifting this burden to the employer, the NLRB is attempting to induce employers to accept authorization cards as evidence of the union’s majority status.
There is a strong argument that authorization cards are an inherently unreliable indicator of majority support. As the dissenting opinion in Cemex noted, “signing an authorization card is an observable and, often, observed act, and employees may sign a union card not because they want the union as their bargaining representative but because they were pressured by their coworkers to sign.” Cemex, 372 NLRB No. 130, at 42.
Empirical studies also underscore that union authorization cards provide an inferior means for determining the will of the majority compared to NLRB -conducted secret-ballot elections. In a study that was cited by the dissenting opinion, it was found that “even where the union had authorization cards from between 50 and 70 percent of the employees, it won only 48 percent of the elections.” The dissenting opinion also cited a second study finding that “18 percent of those signing authorization cards did not want union representation at the time they signed.” Id. at 43.
Another problem with the use of authorization cards as evidence of majority support is that, from a timing standpoint, an employer may not have the opportunity to share its opinions regarding the union until it is too late. Card campaigns often are conducted without the employer’s knowledge. It is not unusual for an employer to first learn of the card campaign by being presented with the actual cards—accompanied by the union’s demand for immediate recognition. Where that is the case, both the employer and the employees are deprived of the opportunity to fully consider the arguments both for and against union representation. In short, the authorization card approach being promoted by the NLRB likely will deprive employers of the opportunity to run meaningful anti-union campaigns.
Given that the new Cemex approach is designed to promote voluntary recognition through authorization cards, employers need to take proactive measures to both recognize and respond to demands for voluntary recognition. Managers and frontline supervisors need to be trained to recognize the early warning signs of a union card campaign. In addition, managers and supervisors need to be trained on what they can and cannot do in response to a card campaign once an employer suspects that such a campaign is underway. It is important that managers and supervisors receive this training so that they do not engage in conduct that could form the basis of an unfair labor practice (ULP) charge. (If a ULP occurs, the NLRB may issue a “bargaining order” compelling the employer to recognize and bargain with the union). It is recommended that employers contact their legal counsel for training on how to detect early warning signs of a card campaign, as well as training for managers and supervisors on what they can and cannot do during the course of such a campaign.
