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On February 9, 2024, the NAM joined 15 other leading business groups in filing an amicus brief urging the court to reject the National Labor Relations Board’s decision that does away with the longstanding policy of protecting workers’ rights to secret ballots in union organizing efforts. This case involved a bargaining unit of approximately 366 cement truck drivers who voted against representation by the International Brotherhood of Teamsters. Following this “no” vote, the Union accused the employer of unfair labor practices—specifically, that the employer engaged in coercive conduct to dissuade employees from voting in favor of Union representation—and asked that the results of the election be set aside, and that the employer be ordered to bargain with the Union. Although an Administrative Law Judge recommended that a new election be held, the NLRB’s Democratic majority instead used the case to announce a troubling new framework for determining when employers are required to bargain with unions without a representation election. The NLRB determined that if a union claims to have majority support and demands recognition, an employer must either (1) grant recognition without the benefit of a secret ballot election, or (2) file its own NLRB petition seeking an election. If the employer fails to take either step, the union can file an unfair labor practice charge, and the NLRB will order mandatory union recognition unless the employer proves the union did not have majority support in an appropriate bargaining unit. And, perhaps most worrying, even if the employer files a petition for election, the NLRB may cancel the election and issue a bargaining order if the employer commits virtually any unfair labor practice during the period preceding the election—this would include seemingly innocuous conduct like having a “workplace civility rule” in an employee handbook.

Our coalition argues that the Cemex decision is contrary to congressional intent by defaulting union representation to card check rather than via secret ballots and puts the burden on employers to call for an NLRB-supervised election, rather than the union as currently required. The brief also argues that the decision violates Supreme Court precedent by making any unfair labor practice sufficient to support the issuance of a bargaining order against the employer, forcing the employer to recognize a union that may not have majority support from the workforce.