The National Labor Relations Board will let unions organize at workplaces using signed cards instead of secret ballots, reviving a standard dropped 50 years ago.
It’s a victory for a key union backer ahead of President Biden’s 2024 election bid.
The overhauled framework unveiled Friday requires employers to recognize unions when presented with evidence that most workers have designated the union as their representative, a move called card check.
Employers may respond by petitioning for an election, but if they commit any election-related “unfair labor practice,” the petition may be dismissed and “the board will order the employer to recognize and bargain with the union,” said the board’s statement on its decision regarding Cemex Construction Materials Pacific.
“The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment,” said NLRB Chairwoman Lauren McFerran. “Under Cemex, an employer is free to use the board’s election procedure, but is never free to abuse it — it’s as simple as that.”
The decision from the board’s Biden-appointed majority resurrects the core of the panel’s 1949 Joy Silk doctrine, which was abandoned after unfavorable Supreme Court decisions in 1969 and 1974.
“The new Cemex standard differs from the historical Joy Silk standard, which required an employer to bargain with a union unless it had a good-faith doubt of the union’s majority status,” said the board.
Blasting the decision was National Right to Work Foundation President Mark Mix, who said the “Biden NLRB has plumbed new lows by shamefully but unsurprisingly tossing out workers’ individual rights and granting Big Labor a blank check.”
“The core principle of American labor law is that the workers choose the union,” Mr. Mix said. “But the Biden administration has turned this commonsense principle on its head to empower its Big Labor political allies to pick workers’ pockets just ahead of the 2024 election.”
The foundation argued that the process of gathering worker signatures to gain majority support is ripe for abuse, including “workers being targeted with unwanted home visits, repeated and coercive solicitation, misinformation and other behavior that would be forbidden during a secret ballot vote.”
In addition, “the union knows how you vote,” said Bill Messenger, foundation legal director.
While the new rule let employers ask for a secret-ballot election, Mr. Messenger said that under union-friendly boards, “there’s just a universe of things that can be considered an unfair labor practice.”
He predicted the decision “will probably not survive court review.” Cemex has the option of challenging the decision in federal appeals court. The Washington Times has reached out to Cemex for comment.
“This should be unlawful, but they’re taking the position that they’re just going to do it until somebody stops them,” Mr. Messenger said. “This is a radical shift. This is something that even the board under Obama and the board under Clinton didn’t consider doing. It’s a very radical departure from years of board law.”
Interesting new standard from the NLRB on union recognition: Cemex Standard; In short, labor law violations by employer during an election —> automatic recognition! https://t.co/c1aqHJkoZa</ p>— Judge Selena Alvarenga (@selenaforjudge) August 25, 2023
The five-member board, which has one vacancy, is stacked with Biden picks. Ms. McFerran was named chairwoman by Mr. Biden in 2021, while two other members were appointed by the president. The fourth member, Mark Kaplan, named by former President Donald Trump, filed a partial dissent.