Published
September 30, 2026
In a representation case before the National Labor Relations Board (NLRB) involving Constellation Energy Generation, LLC, the spotlight until now has focused on whether certain staff at the company’s Illinois nuclear facilities are statutory supervisors. But the employer’s latest appeal may generate far more heat than the supervisory issue.
The appeal raises a potentially consequential question: whether the NLRB’s longstanding method of certifying unions is consistent with the text of Section 9(a) of the National Labor Relations Act (NLRA). Depending on how it goes, that could make this a much more high-voltage case.
The election itself was straightforward. In a bargaining unit of 181 employees, IBEW Local 15 received 87 votes, while 73 employees voted against representation. The NLRB Regional Director certified the union because it won a majority of the votes cast, which has been the NLRB’s procedure since the 1930s. However, Constellation argues that is not what the statute requires.
Instead, it argues Section 9(a) states that an exclusive collective bargaining representative must be “designated or selected” by “the majority of the employees in a unit appropriate.” Because the bargaining unit contained 181 employees, the company contends the union needed at least 91 affirmative votes, and it fell short of that threshold.
The significance of the argument extends well beyond this election. For ninety years, the Board has followed its 1936 decision in R.C.A. Manufacturing Co., which treats nonvoters as effectively acquiescing to the outcome chosen by those who vote. Constellation argues that this doctrine conflicts with the statute and that the Board already applies a true majority-of-employees standard in other contexts. It grounds its argument in recent judicial decisions emphasizing textual statutory interpretation, particularly after the Supreme Court’s 2024 decision in Loper Bright, which held agencies may not rely on policy preferences if those preferences diverge from the statute’s best reading.
If the Board, or perhaps a federal court, ultimately accepts that argument, the consequences for employers and unions could be highly charged. Organizing campaigns would need affirmative support from a majority of all employees in the bargaining unit, so low turnout elections would become far more difficult for unions to win.
For employers, that is the real source of energy in this case. If Constellation prevails, the decision could rewire representation-election law, alter the power grid on which Board elections have operated for decades, and spark one of the most significant changes to union election procedures in generations. There are doubtless many more procedural machinations to come, but Constellation Energy is a case that will be worth watching.
About the author
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
