NLRB General Counsel seeks to facilitate union organizing

National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo is taking aggressive positions designed to help unions be more successful in organizing. The GC is the agency’s top lawyer. While she can’t unilaterally change the law, she can argue prior precedent was wrongly decided and urge the present union-friendly NLRB members to change the organizing rules.

Making elections optional

For about 50 years, the law has been stable. An employer can insist on an NLRB-supervised secret-ballot election instead of recognizing a union as the exclusive representative of its employees when a union claims it has authorization cards signed by a majority of the workers. In a recent case, however, the GC submitted a legal brief arguing the Board should return to its 1948 standard, which required an employer to recognize a union unless it can prove the union doesn’t have authorization cards authentically (not fraudulently) signed by a majority of the employees. Cemex Construction Materials Pacific.

A return to the 1948 standard would eliminate elections in the vast majority of cases. It would be very difficult for a business to combat union organizing. Employers often don’t know about organizing efforts until after cards are signed. A union could be put in place before the company has the opportunity to engage in a proemployer campaign. Alternatively, the employer would be forced to engage in the expensive process of arguing, before the NLRB, the authenticity of each employee’s authorization card.