Businesses Challenge NLRB to Rethink Union Election Majorities

A coalition of businesses is urging the National Labor Relations Board (NLRB) to rethink what constitutes a majority in unionization elections.

The argument stems from a 2025 case in which employees at Constellation Energy Generation, the country’s largest producer of clean energy, voted 87-73 in favor of forming a union with the International Brotherhood of Electrical Workers. However, the company had 181 eligible voters, meaning only 48% of the covered workforce actually voted in favor of unionization.

Since 1936, the NLRB has held that a representation election is valid when a majority of the votes cast approve the union, even if that number is less than a majority of the whole bargaining unit. Constellation is arguing that the NLRB has long misinterpreted the National Labor Relations Act (NLRA), which states that bargaining representatives must be “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes.” This language, Constellation contends, means that a majority of all employees — not just those who choose to vote — is required to establish union representation.

The legal theory is being tested now in the wake of the Supreme Court’s 2024 Loper Bright decision, which directed courts to exercise their own judgment when interpreting statutory meaning rather than deferring to the interpretations and applications of regulatory agencies. If accepted, the new interpretation would undo the NLRB’s precedent in the 1936 case of R.C.A. Manufacturing. In that situation, the board certified a union election where only one-third of eligible workers cast votes on the reasoning that a turnout requirement would allow a rival union or an employer to manipulate election results by intimidating voters.

The Coalition for a Democratic Workplace, a business advocacy group composed of hundreds of trade associations, has filed an amicus brief in the Constellation case in support of the employer’s argument.

“Once a union is certified, it speaks for every worker in the bargaining unit,” CDW Chair Kristen Swearingen said. “That is why the NLRA explicitly requires a union be chosen by a majority of the employees in the unit, not merely a majority of those who cast a ballot. Congress wanted unions to have true majority support before they could act as the exclusive bargaining representatives of a workplace.

“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. 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.”