Joe Biden likes to think of himself as “the most pro-union president in American history.” Only time will tell if his assessment is correct, but his case just got a little stronger thanks to his progressive appointees at the National Labor Relations Board.
Last week the federal agency that oversees collective bargaining issued a landmark ruling that experts believe will make it easier for workers to form unions. The decision, known as Cemex, for the building materials company at the heart of the case, creates real consequences for employers who break the law in an effort to keep a union out.
When workers want a union, they typically gather signed cards and file for a secret-ballot election. But under the Cemex standard, when workers demonstrate they have majority support for a union, the onus is on the company to either recognize the union or promptly ask the NLRB to conduct an election to determine if a majority want union representation.
Then, if the company breaks the law in such a way that it warrants throwing the election results out, the board can order the company to recognize the union and start bargaining. There would be no “rerun” election, as there has been until now.
Although it has long been possible for the board to order union-busting companies to bargain even if the union loses a vote, experts say the new system under the Cemex decision makes that outcome more likely ― and therefore discourages employers from breaking the law in the first place.
“This is going to give us faster elections and less union busting.”
- Sharon Block, Harvard Law School
The idea, the board’s Democratic majority wrote in their decision, is to create a disincentive for employers to threaten or interrogate workers, or to make illegal promises so that union support tanks ahead of the vote.
Combined with new NLRB rules that streamline the union election process, the changes make organizing campaigns more likely to succeed, according to Sharon Block, a labor law professor at Harvard Law School. Borrowing a term from the president, she called the ruling “a BFD.”
“This is going to give us faster elections and less union busting,” predicted Block, a former Biden administration official. “I imagine we will see some real consequences.”
Employers are likely to challenge the legality of the new process in federal court ― Cemex filed a request Thursday for review by the U.S. Court of Appeals for the District of Columbia Circuit ― and a future Republican board could try to undo the Cemex decision. But labor leaders hope it will stand up and mark a shift from years past when companies could break the law knowing they were unlikely to face real penalties.
Liz Shuler, the president of the AFL-CIO labor federation, told HuffPost the ruling was “exciting.”
“I think it will make a difference, getting back to the principle around workers in a majority being able to join a union and the law being on their side,” Shuler said. “It’s been frustrating for so many years as corporations have chipped away at the law. This NLRB is different.”
It can be notoriously difficult for a union to win an election when the employer runs an aggressive counter-campaign against the organizers. A good example would be the Cemex case itself, which HuffPost detailed in a story last year.
Cemex is a multinational corporation based in Mexico that produces ready-mix concrete and other building materials. In 2018, truck drivers at hubs in Southern California and Nevada petitioned to join the Teamsters union. Management resisted the effort even though the Teamsters already represented drivers at other Cemex facilities and had a decent working relationship with the company.
Cemex hired an anti-union consulting firm, the Labor Relations Institute, which HuffPost recently profiled in a five-part series, and paid it more than $1 million to persuade workers not to unionize. A judge later found that Cemex committed “extraordinary violations” of the law, including making illegal threats, pressuring employees to remove union stickers, interrogating them about union activities, surveilling them and firing a union leader, Diana Ornelas.
“It was so traumatic for me,” Ornelas previously told HuffPost.
The Teamsters ended up narrowly losing the election, 179-166, even though a majority of the Cemex workers had signed union cards at the start of the campaign.
The judge in the case ordered that Cemex offer Ornelas reinstatement and backpay, but despite the breadth of unfair labor practices he found, he did not order that Cemex bargain with the union. In an appeal to the board in Washington, the NLRB’s general counsel, Biden appointee Jennifer Abruzzo, recommended that the NLRB reconsider the framework for when a company is ordered to bargain with a union after the company breaks the law.
The process the board’s Democratic majority came up with was different from what Abruzzo envisioned but significant nonetheless. The board, chaired by Lauren McFerran, wrote in its decision that it hoped its new standard would “more effectively disincentivize employers from committing unfair labor practices.”
In a dissent, the board’s lone Republican member, Marvin Kaplan, accused his colleagues of pursuing “dramatic changes in Board law” and “departures from long-standing precedent.” He noted that a single unfair labor practice committed by the employer could lead to the employer being ordered to bargain.
“It’s been frustrating for so many years as corporations have chipped away at the law. This NLRB is different.”
- AFL-CIO President Liz Shuler
Caren Sencer, a labor lawyer who represented the Teamsters in the case, argued that the board’s new standard “strikes a balance.” It still allows an employer to demand an election ― they must do so within two weeks ― and make its case against the union, even if a majority of workers signed cards. But Sencer said it doesn’t allow the company to “abuse” the process.
“You can still say ‘I want a vote’ and say to your employees, ‘Here’s the experiences I had with a union and why I don’t think it’s a good idea,’” she said. “What you can’t do is the things you weren’t [legally] allowed to do anyway, like threatening employees.”
She added that the board was smart to frame the decision around protecting employees’ free choice.
“How do you fight that?” she said of the reasoning. “Do you say, ‘Yes, we should be able to [break] the law?’”
Though the logic may seem unassailable to union supporters, Republicans quickly came out to blast the decision. Rep. Virginia Foxx (R-N.C.), chair of the House Committee on Education and the Workforce, called the Cemex framework “un-American” in a statement, arguing it gives labor groups “a clear advantage in unionization efforts.”
“It’s a concerted effort to chip away at workers’ rights and force every worker in America into a union,” Foxx claimed.
Even if the Cemex decision makes employers less likely to violate the law, most unions will still view the NLRB election process as a broken system and a major reason why union density has dropped to just 6% in the U.S. private sector. But the major reforms many would like to see ― and that Biden himself has stumped for ― are not going anywhere while Republicans control the U.S. House.
Harvard’s Block said that’s why the actions of the NLRB are so significant ― and why Biden’s choice of Abruzzo as the agency’s general counsel should be “exhibit A” for his claim to be the most pro-union president.
“It’s an incredibly consequential appointment,” Block said. “We would be much better off if we had different labor law, but we have the labor law that we do. And I think [Abruzzo] has shown an incredible commitment to finding ways to wring the most protections for workers rights that are possible out of a flawed statute.”