On October 28, Independent Electrical Contractors (IEC) joined the Coalition for a Democratic Workplace (CDW) and several other leading employer organizations in filing an amicus curiae brief with the National Labor Relations Board (NLRB) in Constellation Energy Generation, LLC. The brief urges the board to enforce what the coalition argues is the National Labor Relations Act’s (NLRA) requirement that a union receive support from a majority of all employees in a bargaining unit, not simply a majority of employees who participate in a representation election.
The case raises an important question about how union representation elections are conducted and when a union should be certified as the exclusive bargaining representative of employees. In this instance, the union received a majority of the votes cast, but fewer than half of all employees in the bargaining unit actually voted in favor of union representation. Under the NLRB’s longstanding interpretation of the law, a union can be certified when it receives a majority of votes cast, even if that support represents less than a majority of the entire bargaining unit.
CDW argues that this practice conflicts with Section 9(a) of the NLRA, which provides that an exclusive bargaining representative must be selected by “the majority of the employees in a unit.” The brief contends that Congress intended this language to require affirmative support from more than half of the entire bargaining unit before a union can be granted exclusive representation rights.
The brief also challenges the legal precedent underlying the NLRB’s current approach, which dates back to a 1936 board decision in RCA Manufacturing Co. CDW argues that the board’s interpretation has not kept pace with subsequent amendments to the NLRA, particularly the 1947 Taft-Hartley Act, which expressly protected employees’ right to refrain from union activity and collective bargaining. The brief further argues that the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, which eliminated mandatory judicial deference to federal agencies’ statutory interpretations, reinforces the need for the board to follow the best reading of the law’s actual text.
The outcome could have significant implications for employers and employees across the country, including IEC member contractors. As the exclusive bargaining representative, a certified union speaks on behalf of all employees in the bargaining unit, including those who voted against union representation or chose not to participate in the election. Requiring affirmative support from a majority of the entire unit, the coalition argues, would help ensure that union representation reflects the support of a majority of the employees it will represent.
“For nearly 90 years, the board has replaced the text of the NLRA with its own policy judgment, enabling unions to take hold of a workplace without the support of the workers in question,” CDW Chair Kristen Swearingen said in a statement. “Loper Bright makes clear that this longstanding error cannot and should not continue. We urge the board to restore the standard Congress actually enacted and ensure that no worker is bound to a union that a majority of their coworkers never chose.”
IEC’s participation in the brief is funded in part by IEC’s Freedom Fund and is part of IEC’s broader advocacy to promote balanced labor policies, protect employee free choice, and advance the interests of merit-shop electrical contractors and workers. With the Senate’s August confirmation of NLRB nominees James Macy and David Prouty, the board now has a Republican majority and a quorum through at least December 2027 to consider significant legal and policy questions affecting employers and employees, including controversial decisions by the board under a Biden-appointed majority.
IEC will continue working with CDW and other employer organizations to encourage the board to administer the NLRA consistent with its statutory requirements and protect the rights of both employers and employees.