On Feb. 9, the ABC-led Coalition for a Democratic Workplace and 15 employer organizations filed an amicus brief before the U.S. Court of Appeals for the 9th Circuit in Cemex Construction Materials Pacific v. NLRB, in which the National Labor Relations Board altered the union representation election process to essentially eliminate secret ballot elections in place of card check. The CDW called on the 9th Circuit to set aside and decline to enforce the NLRB’s order, which takes away employees’ right to choose representation without pressure or coercion.

The coalition wrote that the NLRB’s decision in Cemex 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 U.S. Supreme Court precedent in the Gissel case 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.

“The Cemex decision has upended the union representation process. Instead of workers voting via a private ballot on whether they want to unionize, unions can now coerce, intimidate and lie to workers to get them to sign authorization cards with no guarantee that a secret ballot election will ever be held,” said Kristen Swearingen, CDW chair and ABC vice president of political & legislative affairs, in a statement. “The Board pursued this policy despite the Supreme Court, federal appeals courts, and Congress all clearly stating that the secret ballot process is the only method that gives workers the privacy they need to truly vote their conscience on such an important issue.

“With this ruling, the Board has made it clear they do not want to protect workers’ privacy,” said Swearingen. “They do not want a fair and level playing field during unionization campaigns. They want to tip the scales in favor of unions at any expense, including the rights and wellbeing of workers. The Board’s Cemex decision should be set aside, and secret ballot elections should be protected at all costs.”