According to U.S. News & World Report, in 1758 George Washington was elected to the Virginia House of Burgesses after he plied voters with beer, whiskey, rum punch, and wine.

He did so after a landslide loss three years earlier to a candidate who served a lot of booze to the eligible voters.

Nearly 200 years later, Time quoted Sam Hatfield, a descendant of the Hatfield side of the Hatfield-McCoy feud, as having witnessed an apparent payoff to voters in a primary election of “one half-pint of bourbon whiskey and $2 to $5 in cash.”

The “half-pint vote” was an old political tradition in the depressed coal counties of southern West Virginia. The five bucks was probably for a six pack to go with the pint.

Booze for a vote is no laughing matter. Just ask Woodford Reserve.

Woodford Reserve operates a Bourbon distillery in Versailles, Kentucky.

On April 8, 2024, an Administrative Law Judge of the National Labor Relations Board recommended that Woodford be ordered to bargain with Teamsters Local 651 even though the Teamsters lost an election to represent the employees in Versailles by a 3 to 1 ratio.

That sounds downright un-American, until you hear the rest of the story.

More important, this dispute will help us understand the ramifications of the Biden Board’s decision in Cemex Construction Materials Pacific, LLC.

Woodford’s employees wanted a union. Or at least they thought they did.

The ALJ’s decision spans 27 pages and quotes numerous emails between Woodford’s managers about the Union’s organizing campaign. Here’s the short version of what happened:

• In August 2022, the Teamsters notified Woodford that employees in Versailles had begun an organizing campaign and asked it to remain neutral during the campaign.

• Woodford’s managers promptly held meetings with the employees, acknowledged receipt of the union’s letter, and responded to the request for neutrality by saying “that’s not going to happen.” (What a surprise.)

• In early October 2022, the Plant Director in Versailles notified several executives and Human Resources managers of the “speculation” that 50-60 percent of the employees had signed authorization cards. (I’ll bet the executives needed a stiff drink after hearing that.)

• A few weeks later the union filed an election petition with the NLRB, supported by authorization cards signed by a majority of the distillery’s employees.

• That same day, the union sent a letter to Woodford requesting recognition and offering to submit the authorization cards to a neutral third party for verification.

• The request was met with stony silence, and an election was set for November 17, 2022.

• One month before the election, Woodford announced a wage increase of $4 an hour. (Six months earlier, it had implemented an increase of $1 an hour, which the employees griped about as being inadequate.)

• A week before the election, Woodford gave the employees a bottle of Double Oaked bourbon. (Despite its moniker, that’s not Woodford’s best stuff.)

• The vote count was 14 for the union, 45 for Woodford, and 7 challenged ballots. (No mention of whether the voters had some Double Oaked before going to the polls.)

• In the weeks between the announcement of a wage increase and the election, many employees stopped communicating with the Teamsters organizers.

It’s all about the remedy

Back when I was a baby labor lawyer, and long before I morphed into an employment litigator, a “re-run” election was the typical remedy for unfair labor practices that contributed to a union’s election loss.

Although there were egregious cases that resulted in orders to bargain with the losing union, they were the exception.

Those days are gone. In its 2023 decision in Cemex Construction, the NLRB created a whole new set of rules for dealing with union requests for recognition and an employer’s response to them.

Under this new framework,

...an employer violates [the NLRA when it refuses] to recognize, upon request, a union that has been designated as [a representative] by a majority of employees in an appropriate unit, unless the employer promptly … files a petition [for an election] to test the union’s majority status … assuming that the union has not already filed [such] a petition.

...[I]f the employer commits an unfair labor practice that requires setting aside the election, the petition …will be dismissed and the employer will be subject to a remedial bargaining order.

If you haven’t already had that drink, you may want to pour it now.

The new framework quoted above is short, but it packs quite a punch.

Breaking it down into its component parts, here’s what it means:

• When a union claims to represent a majority of an employer’s employees in an appropriate bargaining unit and requests recognition, the employer must either recognize the union or file a petition seeking an election.

• According the NLRB’s General Counsel, the demand for recognition can be oral, and it can be made to anyone acting as an agent of the employer.

• If the employer refuses to recognize the union and fails to seek an election within two weeks of the demand, it commits an unfair labor practice and, based solely on the signed authorization cards, the Board will order it to recognize and bargain with the union.

• If an election petition is filed, and the employer commits unfair labor practices that would require setting the election aside, the employer will be ordered to bargain with the union. Even one unfair labor practice may be sufficient.

I hope you have had your first sip, because here are a couple of nightmare scenarios that could play out under this new framework:

• A union representative gets the majority of employees to sign authorization cards by promising them the moon and the stars. He then makes an oral demand for recognition on a front-line supervisor who tells him to pound sand and does nothing more. A month later, the employer may find itself in a dogfight over recognition and bargaining rights.

• When confronted with a demand for recognition, the employer files a timely petition for an election. In the runup to the election, the union pores through every policy and handbook provision of the employer looking for things that violate the NLRA and could be characterized as interfering with the employees’ right to organize. Even if there are no other allegations of unfair labor practices, and even if the election goes forward and the union loses, that employer could find itself in a recognitional dogfight.

Lessons to be learned

First, let’s put this in perspective.

The Board’s decision in Cemex is on appeal to the U.S Court of Appeals for the Ninth Circuit, other appellate courts are likely to be asked to review bargaining orders based on Cemex, and the U.S. Supreme Court may make the final call on its viability.

Before those appeals play out, the political winds may shift, and a newly reconstituted Board may swing the pendulum back to the pre-Cemex standards.

While those possibilities (and your drink) may give you some comfort, both will take time to play out. Meanwhile, unions will continue to use Cemex to their advantage.

What’s an employer to do?

Make sure managers and supervisors are aware of the need to immediately report any demands for recognition to upper management.

Confirm that handbooks and policies do not create hidden exposure to unfair labor practices that a union could describe as interfering with a fair election.

Educate managers and supervisors about what they can and cannot do in response to employee efforts to organize. Remember, even one unfair labor practice can be enough to trigger a bargaining order.

Finally, get help. Navigating these new and unchartered waters requires a skilled captain. That means an old-school, traditional labor lawyer.