NLRB announces card-check light rule

Labor advocates have long sought a national card check rule that would require employers to review union-support cards and, if signed by a majority of workers, recognize the union without need for a secret ballot election supervised by the NLRB. This practice has been opposed by those who view it as undermine individuals’ right to express their vote in a secret ballot election without fear of coercion. Labor advocates tho contend the NLRB’s secret ballot election process has itself become unfair and unduly protracted.

In a decision today, entitled Cemex Construction Materials Pacific, LLC, the Board fell short of imposing a card check requirement, and instead held that employers decline to do card check-recognitions at their risk. The Board held that an employer who declines to card check-recognize will, if later — after forcing and winning an election — is found in violation of some other unfair labor practice that warrants a redo of the election, will face an order that shortcuts the need for a redo election and instead will be issued an order that mandates the company to proceed straight to bargaining. In other words employers who decline card check-recognitions will now face, in later ULP charges, the risk of an immediate bargaining order.

Employers are reminded that the Board has recently greatly enhanced the scope and extent of bargaining orders. Thus this new remedy, while short of a card check rule, is itself a substantial development.

One option employers facing this issue may have, when presented with cards, might be to, itself as the employer, immediately file its own petition with the NLRB for a secret ballot election. Issues related to this possible procedural step will need to be clarified in litigation, but may, unions will likely argue, include some consideration of the employer’s good faith evidentiary basis for doubting the cards.