The NLRB is attempting to make it nearly impossible for employees to vote in secret ballot elections when considering whether to unionize the workplace.
On August 25, 2023, the National Labor Relations Board issued its decision in Cemex, imposing a new framework that 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. CDW, along with several other employer organizations, sued the Board challenging the decision in the 9th Circuit.
Prior to the decision, to petition for a representation election, a union had to produce signed authorization cards from at least 30% of the workers in the proposed bargaining unit. If the union produced cards from over 50% of the proposed unit, the employer could voluntarily recognize the union without an election. Now, employers will be forced to agree to card check, a system in which union organizers can approach employees (at any time, in any place, and as many times as necessary) to present them with an authorization card and ask for (or demand) their signature, in most circumstances.
Under the new standard, when a union claims majority support, an employer has two options: 1) they can voluntarily recognize the union and begin to bargain with them as the exclusive bargaining representative of the unit; or 2) they can file a petition for an election with the NLRB, but they must do so within 2 weeks. If they miss the 2-week window, the Board can issue a bargaining order requiring the employer to recognize and bargain with the union.
Card check is notoriously flawed. It leaves workers vulnerable to coercion and harassment by union organizers and their supporters by forcing them to express their support or opposition to union representation in front of others. Card check is also used to both hide the unionization campaign from the employer and expedite it, with the goal that employees never hear from employers about the negatives of the union and unionization, leaving workers without the information they need to make this decision.
Secret ballot elections are the best method of determining workers’ true feelings about union representation in the workplace, and they should be guaranteed to all workers. CDW will continue to pursue the issue in court as opportunities arise.