NLRB Chair Touts How New Test Boosts Free, Fair Union Choice

The National Labor Relations Board is advancing federal labor law’s mandate to protect workplace democracy via its recent landmark ruling to ease unionization, together with a new regulation speeding the pace of voting, according to the board’s chief.

In an interview with Bloomberg Law Tuesday, NLRB Chair Lauren McFerran (D) lauded Cemex Construction Materials Pacific LLP as the most significant decision from her nine years serving on the board. She said the Aug. 25 ruling provides two “viable paths” for workers to express their views on union representation: employers recognizing a union based on authorization cards signed by a majority of employees, or workers voting without illegal employer coercion.

“The goal is to have a free and fair selection process,” McFerran said. “The Supreme Court has made clear you can have a selection process that involves voluntary recognition or you can have a selection process that involves an election.”

“But either way, the best-case scenario is you want something that is free and fair, and efficient—timeliness is a key consideration, too,” she added

The timeliness factor is what the NLRB’s election rule, issued just a day before Cemex, is designed to provide. By eliminating needlessly lengthy procedures and tightening deadlines, the rule allows a union election in as few as 15 calendar days from the filing of a representation petition with the board, McFerran said.

That’s more than twice as fast as the minimum of 34 days for a vote under the now-defunct Trump-era rule—though under that rule workers typically had to wait 50 to 70 days for an election, she said.

The NLRB issued the election rule, the Cemex decision, and a handful of other precedential rulings prior to Democratic member Gwynne Wilcox’s short-lived absence from the board at the end of August. Wilcox rejoined the NLRB after the Senate confirmed her for a second term Sept. 6.

Balancing Act

The new Cemex standard likely will have to pass judicial muster to stick, as the NLRB needs court orders to enforce its own directives.

The ruling, McFerran said, is designed to harmonize unions’ right to represent workers without an election with employers’ right to demand an election.

In that respect, the decision allows employers that decline to voluntarily recognize unions based on signed cards to file a petition for an election with the NLRB.

But employers that go the election route face the prospect of receiving an order to recognize and bargain with the union if they commit unfair labor practices in the lead up to the vote.

“Not every single unfair labor practice charge that could conceivably be filed is going to result in a bargaining order,” McFerran said. “We apply the same standard that we used in determining whether there should be a rerun election in the past to determine whether to issue a bargaining order.”

If an employer does nothing for two weeks after it’s presented with signed cards from a majority of workers, the decision also allows a union to seek a bargaining order by alleging an unlawful refusal to bargain.

In that type of unfair labor practice proceeding, an administrative law judge would consider issues that regional directors traditionally would handle in representation cases, such as the appropriateness of the bargaining unit or whether the workers in question are covered by the NLRA, McFerran said.

“Those issues will be litigated,” she said. “You can’t get a bargaining order for a unit that the board doesn’t have jurisdiction over.”