Biden's NLRB Brings Workers' Rights Back From the Dead

[Celerity]

A decision last Friday makes union organizing possible again.

https://prospect.org/labor/2023-08-28-bidens-nlrb-brings-workers-rights-back/



Hot Labor Summer just became a scorcher. Last Friday, the National Labor Relations Board released its most important ruling in many decades. In a party-line decision in Cemex Construction Materials Pacific, LLC, the Board ruled that when a majority of a company’s employees file union affiliation cards, the employer can either voluntarily recognize their union or, if not, ask the Board to run a union recognition election. If, in the run-up to or during that election, the employer commits an unfair labor practice, such as illegally firing pro-union workers (which has become routine in nearly every such election over the past 40 years, as the penalties have been negligible), the Board will order the employer to recognize the union and enter forthwith into bargaining.

The Cemex decision was preceded by another, one day earlier, in which the Board, also along party lines, set out rules for representation elections which required them to be held promptly after the Board had been asked to conduct them, curtailing employers’ ability to delay them, often indefinitely. Taken together, this one-two punch effectively makes union organizing possible again, after decades in which unpunished employer illegality was the most decisive factor in reducing the nation’s rate of private-sector unionization from roughly 35 percent to the bare 6 percent at which it stands today. In the Board’s press release outlining its 121-page decision in Cemex, it explained:



“This is a sea change, a home run for workers,” said Brian Petruska, an attorney for the Laborers Union who authored a 2017 law review article on how to effectively restore to workers their right to collective bargaining enshrined in the 1935 National Labor Relations Act, which was all but nullified by the act’s weakening over the past half-century. Taken together, Petruska added, last week’s decisions recreate “a system with no tolerance for employers’ coercion of their employees” when their employees seek their legal right to collective bargaining.

Petruska’s 2017 article explained how an attorney’s misstatement in a 1969 case before the Supreme Court (NLRB v. Gissel Packing Co.) led to the abandonment of a previous Board ruling in the case of Joy Silk Mills, which had required employers to recognize their workers’ union and enter into bargaining if they’d refused to recognize the union after a majority of workers had voted for affiliation. The article didn’t draw wide notice; at least, until President Biden’s appointee as the NLRB’s general counsel, Jennifer Abruzzo, sent out her initial memo to the 500 NLRB attorneys across the country whom she supervised. In the memo, Abruzzo laid out the kind of cases those attorneys could pursue, and suggested that they consider cases based on the long-forgotten Joy Silk standard, which she viewed as erroneously discarded, with demonstrably catastrophic consequences for workers’ right to unionize and bargain.

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