For decades, the National Labor Relations Board (“NLRB”) has found that secret ballot elections are the best method for determining whether workers want to be represented by a union. A recent memo from the NLRB General Counsel, however, makes it clear that the current Board is intent on making it much easier for unions to win the right to representation without a vote of the employees. The memo, GC 24-01 (issued November 2), explains the Board’s approach following this summer’s decision in the case of Cemex Construction Materials Pacific and International Brotherhood of Teamsters, 372 NLRB No. 130 (8/25/23). One aspect is particularly troubling for employers.

Under current practice, if an employer commits an unfair labor practice during an election campaign, the most likely remedy (if the union did not win the election) is a re-run election. However, if the violation is particularly egregious, the Board will issue a bargaining order, which grants the union the right to represent the employees even though they did not win the election. After Cemex, as explained in the GC memo, any violation by the employer during the campaign will automatically result in a bargaining order in favor of the union so long as the union can show that a majority of the employees signed a card or petition in favor of the union. The GC memo endorses this position regardless of the nature or severity of the violation. Moreover, equating a signature on a card or petition with unequivocal support for a union would seem to be a leap of faith—anecdotally, employees sign such documents for many reasons, including peer pressure, and may very well have a change of heart after learning more about working in a union shop. Regardless, the process endorsed in the GC memo will certainly make it easier for unions to win the right to represent employees who don’t have a chance to vote on whether that is actually what they want.

With an employer facing such a drastic penalty for even a minor violation, employers must pay attention to their pay, benefits and management practices, to reduce the chance that a union would find the employer a likely target. And in the event there is a campaign, the employer must thoroughly train all its managers on the applicable rules to have any chance of avoiding this draconian result.

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