NLRB Weakens Secret-Ballot Elections In Union Campaigns, Increasing Unionization Perils

• Jurisdiction: United States,Federal
• Law Firm: K&L Gates
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Author: Mr Michael Pavlick and Taylor Arluck
• Published date: 04 September 2023

On 25 August 2023, the Cemex decision by the National Labor Relations Board (NLRB or Board)¹upended 52 years of Board law that had previously enshrined the secret-ballot election as the default method for union certification. Cemex holds that employers violate Section 8(a)(5) of the National Labor Relations Act (NLRA or Act) if they decline to immediately bargain with a union, unless they file a challenging petition on one of two grounds.

Unlike prior employee-friendly decisions² from the current NLRB that returned to Obama-era precedents, the Board in Cemex reached back some 50 years by reviving a modified version of the long-moribund Joy Silk doctrine,³ which dates back to the Truman administration. Joy Silk held that employers were required to bargain with a union unless they had a good-faith basis for doubting that the union possessed majority support among employees.

The NLRB's holding in Cemex is nothing short of a fundamental rewrite of black-letter federal labor law that will have profound implications for unionized-and especially non-unionized-employers, which may now be deprived of opportunities to directly campaign against union representation prior to the initiation of collective bargaining.

Pre-Cemex, Employers Could Legally Voice Their Concerns About Unions Prior to a Secret-Ballot Election Without Fear of Automatically Violating the NLRA

Before Cemex, the Board's normal procedure for determining the proper collective bargaining representative for employees under Section 9 began when employees or a union filed a petition showing that at least 30% of employees supported a union election.
Assuming the petition was proper, employers could then either voluntarily recognize the union and begin collectively bargaining or deny recognition and insist on a secret-ballot, Board-conducted election. Crucially, pre-Cemex, employers insisting on a secret-ballot election without filing for Board relief did not violate Section 8(a)(5).⁴

If a majority of voting employees chose union representation, then that union would be certified by the Board and able to collectively bargain with the employer on behalf of employees.

In secret-ballot elections, employers and their agents, including employee supervisors and labor consultants, have the right (to some extent deriving from the First Amendment) in the run-up to the actual election to campaign against union representation. The employer's right to campaign against the union was not absolute; for example, employers could not engage in coercive activity, such as threatening employees with plant closures or disciplining union leaders for their union activity, nor could they hold captive audience meetings within 24 hours of the election.

If employers did engage in unlawful conduct that constituted unfair labor practices (ULPs), then the Board possessed the power to either: (i) rerun the election; or (ii) in rare and extreme cases of employer malfeasance before, during, or after an election, issue a Gissel⁵ bargaining order, which then abandoned the election process and required the employer to immediately bargain with the union.

Outside exceptional circumstances warranting a Gissel...