Sept. 11, 2023

New Standard Undoes Half-Century of Union Organizing Precedent

The National Association of Wholesale Distributors (NAW) and the Coalition for a Democratic Workplace are weighing possible actions after a new decision by the National Labor Relations Board (NLRB) imposes a framework for expanding the board’s ability to force employers to bargain with unions even without a secret ballot election.

On Aug. 25, the NLRB issued a decision in Cemex Construction Materials Pacific, LLC that requires employers to either recognize and bargain with a union or file an RM petition seeking an election once the union requests recognition on the basis that a majority of employees have designated the union as their representative. The new Cemex standard differs from the historical Joy Silk standard, the NLRB said in its announcement of the decision. The Joy Silk standard required an employer to bargain with a union unless it had a good-faith doubt of the union’s majority status. However, the standard still bypasses the requirement for a secret ballot vote by employees and overrules a half-century of precedent.

As explained by the NAW, unions historically must show that 30 percent of workers have signed cards in favor of unionization and then must petition the NLRB for a secret ballot election. The election process allows employees to hear competing arguments from employers, which often leads to less support for unionization, the NAW said.

The Cemex decision shifts the burden to employers to petition the NLRB for a secret ballot election after a union requests to be recognized based only on a show of cards, NAW notes. That could lead to situations where a union could prevail by default if an employer does not know they must request a secret ballot election.