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  • Writer's picturePaul Peter Nicolai

NLRB Weakens Secret-Ballot Elections

Updated: Feb 13

The National Labor Relations Board (NLRB or Board) has ended 52 years of Board law that had previously enshrined the secret ballot election as the default method for union certification. 


It held that employers violate the National Labor Relations Act (NLRA or Act) if they decline to bargain immediately with a union unless they file a challenging petition on one of two grounds.


The Board reached back some 50 years by reviving a modified version of a doctrine that dates back to the Truman administration. The old case had held that employers were required to bargain with a union unless they had a good-faith basis for doubting that the union possessed majority employee support.


This fundamental rewrite of federal labor law will have profound implications for employers, who may now be deprived of opportunities to campaign directly against union representation before initiating collective bargaining.


Before this, the Board’s standard procedure for determining the proper collective bargaining representative for employees 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 either voluntarily recognize the union and begin bargaining collectively or deny recognition and insist on a secret ballot, Board-conducted election. Employers insisting on a secret ballot election without filing for Board relief did not violate the Act.


If a majority of voting employees chose union representation, then that union would be certified by the Board and able to bargain collectively 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 campaign against union representation during the election. The employer’s right to campaign against the union was not absolute;  employers could not engage in coercive activity or hold captive audience meetings within 24 hours of the election.


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


Outside exceptional circumstances warranting a bargaining order, the obligation to bargain with a union was determined after a secret ballot election—and then only after employers had some opportunity to exercise their right under the Act to persuade employees to forgo union representation.


The importance of secret ballot elections to determine whether majority support for a union exists has been the law since the mid-twentieth century. This decision changes this to the benefit of unions and the detriment of employers. It holds that an employer violates the Act by not immediately recognizing and bargaining with a union—without a campaign in the run-up to a secret ballot election—unless the employer promptly petitions the Board for relief. 


The Board said promptly means employers must petition within two weeks of a union’s demand for recognition, barring unforeseen circumstances.

Specifically, to avoid violating the Act, employers must now timely file a petition for election challenging either (i) the union’s claim of majority support among employees or (ii) the appropriateness of the employee bargaining unit.


Even if an employer does timely file a petition with the Board after declining to recognize a union voluntarily, the petition will be dismissed if the NLRB finds the employer committed serious ULPs in the run-up to a secret ballot election. The Board will issue a bargaining order mandating that the employer immediately bargain with the union.


Cemex marks a dramatic shift in Board election law because it abandons the old regime where the NLRB would generally wait until the conclusion of a secret ballot election to determine whether an employer’s ULPs warranted either an election re-run or a bargaining order.


While employers do not need to show that they possess a subjective good-faith doubt about the union’s majority status when filing a petition and are free to seek a Board election in which the union’s majority can be tested, if the Board finds that the employer commits any ULPs that make a fair election unlikely, then they will be ordered to bargain with the union immediately.


Unlike prior recent decisions, this one has created a radically different and highly unpredictable mechanism for determining how employers can challenge union campaigns during secret ballot elections and when they may face mandatory bargaining orders without elections.


A more significant issue for employers is deciding what conduct they can engage in before a secret ballot election. The NLRB did not provide a list of employer conduct that might make a fair election unlikely and, therefore, trigger a mandatory Cemex bargaining order.


Faced with the prospect that potentially any ULP charge may result in a mandatory bargaining order, employers will have to think about how exactly to campaign in the future, knowing that any misstep may result in their RM election petition being dismissed and the Board requiring them to recognize and bargain with a union.


Moreover, the results of recently concluded secret ballot elections may also be thrown out. One union has already sought a mandatory bargaining order for alleged ULPs committed within the six-month statute of limitation set by the NLRA. As a result, employers who won recent secret ballot elections but were accused of committing ULPs in the run-up to voting can anticipate union demands for bargaining orders.

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