Labor Day came with good news for workers. Momentum is building to reverse one of the most unjust labor policies of the 21st century.
On Sept. 1, the General Counsel of the National Labor Relations Board — Crystal Carey — formally called on the NLRB to reverse its 2023 Cemex decision. This Biden-era ruling effectively gutted secret-ballot elections in unionization elections. As Carey makes clear, the NLRB has a legal duty to restore that right to protect workers and restore the full measure of workplace democracy.
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It’s hard to overstate how harmful — and insulting — the Cemex decision has been to workers. Before the Biden-era NLRB handed down this decision, unionization elections typically followed a straightforward process. Unions kicked things off by convincing workers to sign cards in support of unionization. The union then presents the cards to the employer, demanding that management recognize the union via “card check” or hold a secret-ballot election.
Most businesses choose the election and protect their workers’ privacy. The initial cards are signed in public — a system that has led to documented cases of union intimidation and harassment. But with a secret-ballot vote, workers can make their true wishes known, since they have the protection of privacy. If a majority of participating workers voted in favor of organizing, the union won. But if a majority voted against organizing, the union lost. This is workplace democracy in action.
But the Cemex decision flipped the script.
Today, unions may still begin the process by convincing a majority of workers to sign cards. They may still demand card check but can also supposedly settle for a secret-ballot election. But the election isn’t the final word. If a union loses the vote, it can then accuse the employer of committing an unfair labor practice. If the NLRB investigates and agrees, it can override the election and recognize the union via the initial card check. Even worse, if an employer doesn’t act fast enough after a union demands recognition, the NLRB can recognize the union with no election at all.
This backdoor card check undermines workplace democracy. Workers may vote, but the NLRB can ignore the outcome. The election is meaningless. The union wins thanks to a card-check system that isn’t private and doesn’t protect workers from coercion. In fact, many workers may have signed the initial cards thinking they’d get the privacy of a vote, only to have the rug pulled out from under them.
To be sure, employers should be held accountable for unfair labor practices, as should unions. But previously, if the NLRB found evidence of wrongdoing for ordinary violations, it held another election. That’s common sense: Unionization should be decided by a secret-ballot vote, so workers can make their voices heard without fear. The current system, under Cemex, is nonsensical. It deprives workers of their most fundamental right.
As NLRB General Counsel, Carey is drawing attention to this injustice. Her brief notes that the Biden-era board ignored “the significant impact its decision had on worker free choice,” which she rightly calls a “backbone” of federal labor law. The General Counsel’s ultimate point could hardly be clearer or more pro-worker: “The right of employees to vote in a secret ballot election, free from coercion and from an informed position, once meant something — it should again.”
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Will the full NLRB answer this clarion call to action? It hasn’t been able to do so until now, because by tradition, the board doesn’t overturn precedent without three votes in favor. The NLRB cleared that threshold when James Macy, a President Donald Trump nominee, was confirmed in August. Also important: The NLRB needs a specific case that bears on this issue, which it has. The General Counsel filed her brief as part of the case, hopefully increasing the likelihood that the NLRB will take up the issue in the near future.
For the sake of workers, the end of the Cemex decision can’t come soon enough. It gutted the promise of workplace democracy — a promise that generations of workers have depended upon. The secret-ballot vote protects their privacy and promotes their true wishes. The NLRB never should have sacrificed this fundamental right in the first place, nor should it delay in restoring free and fair elections for workers.
F. Vincent Vernuccio is president of the Institute for the American Worker.
