The National Labor Relations Board recently issued a decision with significant implications for employees subject to union organizing campaigns. In Cemex Construction Materials Pacific, 372 NLRB No. 130 (2023), the Board upended decades of settled law to allow unions to easily impose their representation on employees through so-called a “card check” and without winning a secret-ballot election amongst employees.

“Card check” is a union organizing tactic in which a union becomes the monopoly representative of all employees in a unit—including employees who want nothing to do with the union—by collecting union authorization cards from a majority of employees in that unit (50% plus 1). Employees unionized under a card check are not allowed to vote on union representation in a secret-ballot election. For decades employers could refuse to impose union representation on their workers through a card check.

This changed under the Board’s recent decision in Cemex. Under Cemex, if a union claims that a majority of employees signed authorization cards in support of the union, within two weeks the employer must either:

1. Recognize the union as the monopoly representative of its employees without allowing employees to vote on union representation in a secret ballot election; or

2. Petition for the Board to hold an election so that employees can vote on union representation with the important caveat that, if the agency believes the employer committed certain unfair labor practices, then the Board will deprive employees of their right to vote in a secret-ballot election and compel the employees to accept monopoly union representation without an election.

If an employer does nothing for two weeks in response to a union demand for recognition based on authorization cards, the NLRB will impose that union on the employees without an election.

What are my rights and options if a union is conducting an organizing campaign at my workplace?

Employees who are the targets of union organizing campaigns, and who do not want to be subject to monopoly union representation, must be vigilant about their rights after Cemex. Under Cemex, unions can impose their mandatory representation on employees quickly and without employees being able to vote on whether they want union representation. If you are an employee subject to a union organizing campaign and oppose union representation, you should know that you have the following rights or options:

1. You have a right to not sign a union authorization card. It is completely up to you whether to sign or not sign a union authorization card. It is unlawful for an employer or a union to threaten or coerce any employee to sign a union authorization card, or to misrepresent the purpose of that card.

   However, you should also beware that false union promises and propaganda will generally not invalidate a signature on an authorization card. It is a good practice to read carefully the language of any union card before signing it.

2. You have a legal right to revoke any union authorization card you have signed. You may revoke any union authorization card you have signed by signing a letter, card, petition, or other document stating that you oppose the union. This statement of opposition will cancel out any union authorization card that you earlier signed. It is illegal for a union to restrict your right to revoke a union authorization card that you signed.

   If you choose to revoke a union authorization card, it is a good practice to inform both the union and your employer in writing that you revoked the card so that the union and your employer do not wrongfully count you as a supporter of union representation during a card check. A Sample Letter Revoking an Authorization Card can be found here.

3. You have a legal right to campaign against the union and circulate petitions against union representation. You have the legal right to campaign against union representation if you choose, provided that it is done on non-work time (such as during work breaks) and in non-work locations (such as in break rooms, lunch rooms or parking lots). An employer cannot discriminate or retaliate against employees based on their support or opposition to union representation.

   You have the legal right to sign and circulate cards or petitions against union representation, on non-work time and in non-work areas. If you oppose the representation of a union, signing and circulating such a petition is perhaps the most important thing that you can do to exercise your legal right to refrain from union representation. Click here to see a Sample Petition.

   If you choose to circulate a petition against union representation, it is a good practice to periodically provide a copy of that petition to your employer as you collect signatures. This will provide the employer with evidence to contest a union claim of majority support if a union demands recognition based on authorization cards it collected from employees. If you have questions about the process, please feel free to ask the Foundation for legal aid.

4. You can contact the Foundation free legal information. If you have questions about your rights during a union organizing campaign, you can contact Foundation staff attorneys for more information and assistance with exercising your rights.

   If you are threatened with unwanted union representation, or were recently forced to accept unwanted union representation, you may also want to Foundation for more information about your legal options. The new union organizing process created in Cemex could be illegal and will be subject to legal challenges. Employees who are unionized without a secret-ballot election under Cemex may have legal options available to them and can contact the Foundation for more information about those legal options.