The National Labor Relations Board (The Board) recently issued a decision that will make it substantially easier for unions to organize. In Cemex Construction Materials, 372 NLRB No. 130 (August 25, 2023), The Board overturned 50 years of precedent and adopted a new approach designed to encourage unions to seek voluntary recognition of their status as the representative of the employer’s employees through the use of authorization cards. This new approach will place a premium on an employer’s ability to detect early warning signs of a “card campaign” and what it can and cannot do in response.
What Is A Card Campaign?
An employer has no duty to recognize or bargain with a union that represents less than a majority of the employer’s employees. Over the years, two methods generally have been accepted for determining majority support: authorization cards signed by a majority of employees (i.e., a “card campaign”) and board conducted secret-ballot elections. Prior to Cemex, the Board and the courts historically have found that board elections are the preferred method of establishing employees’ majority support for unions. According to the Supreme Court, “union authorization cards are admittedly inferior to the election process.” NRLB v. Gissel Packing Company Co., 395 U.S. 575, 602 (1969).
The Board’s New Cemex Standard
Despite the fact that The Board and the courts have recognized that authorization cards are an inferior method of establishing majority support for a union, The Board’s new approach in Cemex is designed to encourage voluntary recognition through the use of such cards. Under the Cemex standard, an employer that is faced with a demand for voluntary recognition now has three options. First, the employer could agree to recognize the union based on authorization cards signed by a majority of the employees. Second, the employer could reject the unions demand for voluntary recognition and, within two weeks, file its own petition (an RM petition) for a secret-ballot election. Note that this second option now places the burden on the employer to seek an election. Lastly, an employer could refuse to voluntarily recognize the union and not elect to file RM petition. In that situation, the employer risks an unfair labor practice charge for failing to bargain in good faith. In short, an employer who elects to do nothing does so “at its peril.”
The Cemex approach is a drastic departure from the legal standard that had been in effect. Prior to Cemex, when faced with a demand for recognition based on authorization cards, an employer simply could reject the cards and force the union to seek a secret-ballot election. Under the new Cemex standard, if an employer rejects the authorization cards the burden now is on it to file a petition for a secret-ballot election. By shifting this burden to the employer, The Board is attempting to induce employers to accept authorization cards as evidence of the union’s majority status.
The Problem with Authorization Cards
There is a strong argument that authorization cards are an inherently unreliable indicator of majority support. As the dissenting opinion in Cemex noted, “signing an authorization card is an observable and, often, observed act, and employees may sign a union card not because they want the union as their bargaining representative but because they were pressured by their coworkers to sign.” Id., at. 42.
Empirical studies also underscore that union authorization cards provide an inferior means for determining the will of the majority compared to board-conducted secret-ballot elections.” In a study that was cited by the dissenting opinion, it was found that, “even where the union had authorization cards from between 50 and 70 percent of the employees, it won only 48 percent of the elections.” The dissenting opinion also cited a second study finding that, “18 percent of those signing authorization cards did not want union representation at the time they signed.” Id., at 43.
Another problem with the use of authorization cards as evidence of majority support is that, from a timing standpoint, an employer may not have the opportunity to share its opinions regarding the union until it is too late. Card-signing campaigns often are conducted without the employer’s knowledge. It is not unusual for an employer to first learn of the card campaign by being presented with the actual cards—accompanied by the union’s demand for immediate recognition. Where that is the case, both the employer and the employees are deprived of the opportunity to fully consider the arguments both for and against union representation. In short, the authorization card approach being promoted by The Board likely will deprive employers of the opportunity to run meaningful anti-union campaigns.
What Employers Should be Doing Now
Given that the new Cemex approach is designed to promote voluntary recognition through authorization cards, employers need to take proactive measures to both recognize and respond to demands for voluntary recognition. Managers and front-line supervisors need to be trained to recognize the early warning signs of a union card-signing campaign. In addition, once an employer suspects that a card-signing campaign is underway, its managers and supervisors also need to be trained on what they can and cannot do in response to such a campaign. It is important that managers and supervisors receive this training so they do not engage in conduct that could form the basis of an Unfair Labor Practice (ULP) charge. (If a ULP occurs, The Board may issue a “bargaining order” compelling the employer to recognize and bargain with the union).
Godfrey & Kahn’s labor and employment team is available to help employers navigate this unprecedented change to union organizing. We offer training for front-line managers and supervisors in how to detect early warning signs of a card signing campaign and training for managers and supervisors on what they can and cannot do during the course of such a campaign. In the context of a card signing campaign, the most effective way to defeat the campaign is to take steps to prevent a majority of the employees from signing cards in the first place. This approach relies heavily on early detection of the card campaign and effective, legal responses thereto. Our management training can help employers do both.