Current NLRB is a threat to industrial democracy for employees and employers

The current NLRB is a threat to industrial democracy for employees and employers

“Threat to democracy.” Our current heated political discourse seems consumed by threat-to-democracy accusations and counter-accusations. Such an assertion should be made only if there is sound reasoning to support it. As it relates to whether the current NLRB is a threat to industrial democracy, there is much to demonstrate that it is.

When I studied Labor Law at the University of Virginia, Professor Frank McCulloch taught the course. Before joining UVA, he served as Chair of the National Labor Relations Board from 1961 to 1971, first appointed by President Kennedy and then re-appointed by President Johnson. The National Labor Relations Board (NLRB) in Washington, D.C. is comprised of five members, all of whom are nominated by the President and subject to confirmation by the Senate. There is an unwritten “rule of thumb” – not always followed – that three of the five members, including the chair, will be members of the same political party as the president. The other two members will be members of the political party not occupying the White House. At present, the board is comprised of three Democrats and one Republican. Now back to Professor McCulloch.

Professor McCulloch was nominated by one Democrat and renominated by another Democrat. He was pro-labor. But he was more than that. He was fervently pro-industrial democracy. He viewed the NLRA’s provisions requiring a secret ballot election to determine if employees do or do not want union representation as “the gold standard” of industrial democracy.

Section 9 of the NLRA states, among other things, that when “an employee or group of employees or any individual or labor organization files an election petition after the employer has declined to voluntarily recognize the union as the employees’ representative,” the next step is for the union to file an election petition with the NLRB. Similarly, an employer presented with a claim for voluntary recognition by a union may likewise petition the board to conduct an election. If, upon investigation of the petition, regardless of who files it, the board determines that a “question of representation exists,” the board is required – and this is the most important part - to “direct an election by secret ballot” and “certify the results thereof.” (Italics supplied.)

Despite the clear, mandatory “secret-ballot” language of the NLRA, over the years legislation has been proposed and re-proposed to amend the law to allow signed union authorization cards to substitute for a secret ballot election. Those proposals have been uniformly unsuccessful, never winning a majority support even in Democrat-majority Congresses. That’s because the secret ballot election isn‘t just the hallmark of industrial democracy, it’s the bedrock of our democratic republic. In the United States, consequential elections are by secret ballot.

Of the many decisions issued by the current NLRB that depart from established precedent, the most anti-democratic one is Cemex Construction Materials Pacific, LLC, 327 NLRB No. 130 (Aug. 25, 2023). The Board’s Cemex decision turned upside down the process for how a union wins collective bargaining rights for a unit of employees and comes close to entirely eliminating the right to a secret ballot election under the NLRA.

Until Cemex, the typical process for determining whether employees did or did not want union representation was as follows. A union would attempt to get at least a majority of employees in the proposed bargaining unit to sign cards authorizing the union to be the employees’ collective bargaining representative. Having obtained enough signatures, the union would either request the employer recognize the union as the employees’ collective bargaining representative or simply petition the Board to schedule and conduct a secret ballot election. There were other possible scenarios, but that was overwhelmingly the most common.

Eighty-eight years after enactment of the NLRA, the Board in Cemex held for the first time that if a union makes an oral or written demand for voluntary recognition, an employer now has two, and only two choices. One choice is to recognize and bargain with the union without an election. The second choice is for the employer to file its own NLRB election petition within two weeks of the union’s demand for recognition. If the employer fails to file an election petition within two weeks of the union’s recognition demand, the employer is legally required to bargain with the union, again without there being a vote. Under either of those two scenarios, the union “wins” collective bargaining rights and the employees become immediately “unionized” without employees ever voting on such a critical workplace issue.

Assume, however, that the employer timely petitions for an NLRB election. Also assume the union does not receive a majority of the votes in the election, i.e., the union loses. Is that the end of it? No.

Standard practice for a union that loses an NLRB election is to immediately file unfair labor practice charges against the employer accusing the employer of doing something unlawful under the NLRA prior to or during the vote.

Prior to Cemex, if the union’s unfair labor practice charges were ultimately found to have merit, the employer was required to take steps to remediate and essentially apologize for what it did and promise not to do it again. Following that, the Board would conduct a re-run election. After all, per the NLRA, questions concerning representation are to be resolved by “an election by secret ballot.” Not according to the Cemex Board.

Under Cemex, if a majority of the voting employees do not vote in favor of union representation, but the board determines the employer committed one or more unfair labor practices prior to or during the vote, the board will simply certify the union as the employees’ collective bargaining representative without conducting a re-run election and despite the fact the union lost the one and only secret ballot election in which the employees participated.

One might ask, “What’s wrong with that? If the employer violates the law, shouldn’t the employer pay a price for that?” The answer is “no,” and for three reasons.

First, the NLRA requires that questions concerning representation are to be resolved via an “election by secret ballot.” Second, unfair labor practice cases in an election setting almost always involve credibility. For example, when an employee says her supervisor “interrogated” her about her union sympathies; the supervisor categorically denies it. Ninety-nine times out of one hundred, this board will discredit the supervisor and find the employer committed unfair labor practices. Finally, if a majority of employees don’t want a union – the employees, after all, voted against union representation – it’s not just the employer who gets saddled with a union that lacks majority support.

Vice President Harris has already stated her intention to continue President Biden’s unwavering pro-labor policies and appointments, so absent a Republican victory on Nov. 5, 2024, the NLRB will continue to follow Cemex.

The only other possibility of industrial democracy returning to the American workplace is via the U.S. Supreme Court’s recent Loper Bright Enterprises v. Raimondo decision in which the Court held that federal courts would no longer defer to rulings and decisions made by federal administrative agencies as long as those rulings or decisions are at least “plausible.” Leaving aside whether the Board’s Cemex ruling even meets the “plausibility” standard, it seems unlikely federal courts – including the Supreme Court – will defer to the NLRB’s departure from enforcing the NLRA’s mandate that questions “concerning representation” be resolved by secret ballot. Or at least we can hope.