NLRB Paves Way for Union Representation Without Elections

The National Labor Relations Board issued a decision last week that makes it much easier for unions to organize workplaces without a secret ballot election. Employers faced with card check recognition that commit any unfair labor practices during the campaign will be required to recognize that union. Meanwhile, the Board also issued new union election campaign rules that will streamline the process for unions. 

In one of the most consequential NLRB decisions in decades, the Board in Cemex Construction Materials Inc., ruled that 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 (i.e., through a “card check”). 

Accusations of unfair labor practices are the norm during union election campaigns. Last year, there were on average more than three unfair labor practice charges filed for every union representation petition. Accordingly, employers facing a union representation push will almost certainly be in jeopardy of facing an order to recognize that union – without an election – from the current Board. You can read HR Policy’s in-depth analysis of the decision and what it means for employers here. 

Even when elections are held, the Board made it quicker for unions to secure a victory. The Board also recently issued final rules on union election campaign procedures which will have the cumulative effect of significantly shortening the timeline for the union election process, while conversely reducing an employer’s ability to educate its employees on the effects of potential union representation. In general, the changes will give employers far less time – and fewer avenues – to educate employees on the effects of potential union representation. For more on these rule changes and their impact on employer operations, click here.

Outlook: The Board’s application of its decision in Cemex could have an enormous impact on unionization and employer operations. Employers must reckon with a new reality under which they may go from a union-free workforce to having to recognize and bargain with a union their employees never actually voted for in a short period of time. It is also worth noting that this monumental decision – along with other recent significant Board activity – was issued while the Board operates with a 3-1 Democrat majority (now 2-1, until Member Wilcox is re-confirmed) and no pending Republican nominee to fill the fifth seat. Employers can expect a steady stream of  precedent-changing activity as long as there is a Democratic majority,  particularly where there is a lone Republican Member, which means fewer cases in which a contrary view can be expressed through dissenting opinions.