NLRB Expands Authority to Force Union on Employees Without Election and Ignores Legal Precedent and Stakeholder Requests for Opportunity for Public Comment

On August 25, 2023, the National Labor Relations Board issued its decision in Cemex, imposing a new framework which greatly expands the Board’s ability to impose unions on employees without a secret ballot election. The Board’s decision reverses a half-century of NLRB precedent and is at odds with long-standing Supreme Court rulings. The Board also made this major policy change without soliciting input from the public via comment or amicus briefs and rejected CDW’s request to allow for amicus briefs.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“The Board’s decision to force unions on employees without an election is contrary to the law and the fundamentals of workplace democracy. Employees deserve the right to decide whether or not they want union representation through a secret ballot election. The Board should be protecting this right and doing everything in its power to promote employee participation in elections – not forcing unions on employees based on unreliable authorization cards. The Board decision overrules precedent that has stood for over half a century and been upheld by the Supreme Court. As dissenting Member Kaplan explained, the new standard will have ‘the primary effect of negating the rights of current employees rather than furthering them’ and therefore ‘defeats, rather than effectuates, the policies of the [Act].’

“Not only is CDW disappointed in the ruling, but we’re disappointed that the Board chose to move forward with such a fundamental change to labor law without seeking input from stakeholders. This is more concerning given that CDW and others specifically called on the Board to invite amicus briefs in the case. The regulated community should have had an opportunity to express their concerns before such a radical change to policy was made.”