This new landmark case is a ‘BFD’ and huge for workers

Joe Biden likes to think of himself as “the most unionist 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 appointments to the National Labor Relations Board.

Last week, the federal agency that oversees collective bargaining issued a milestone decision which 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, it creates real consequences for employers who break the law in an effort to keep a union out.

When workers want a union, they usually gather signed cards and show up for a secret ballot election. But under Cemex’s standard, when workers show they have the majority support of a union, the onus falls on the company to either recognize the union or promptly request the NLRB to hold an election to determine if a majority wants union representation. .

Then, if the company breaks the law in a way that warrants overturning the election results, the board can order the company to recognize the union and begin bargaining. There would not be a “rerun” of elections, as has happened up to now.

Although it has been a long time since the board has been able order Anti-union companies can bargain even if the union loses a vote, experts say the new system under Cemex’s decision makes that outcome more likely and thus discourages employers from breaking the law in the first place.

The idea, the board’s Democratic majority wrote in its decision, is to create a disincentive for employers to threaten or question workers, or make illegal promises so that union support wanes before 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 professor of employment law at Harvard Law School. Borrowing a term from the president, she called the ruling “a B.F.D..”

“This will 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 review request with the US Court of Appeals for the District of Columbia Circuit on Thursday) and a future Republican board could try to reverse the decision. from Cemex. But union leaders hope it will stick and mark a change from years past, when companies could break the law knowing they were unlikely to face real sanctions.

Liz Shuler, president of the AFL-CIO labor federation, told HuffPost that the ruling was “exciting.”

“I think it will make a difference to go back to the principle that most workers can join a union and the law is on their side,” Shuler said. “It has been frustrating for many years to see corporations undermine the law. This NLRB is different.”

It can be very difficult for a union to win an election when the employer aggressively counter-campaigns against the organizers. A good example would be the Cemex case itself, which HuffPost detailed in a history last year.

Cemex is a Mexico-based multinational corporation that produces ready-mix concrete and other construction materials. In 2018, truckers from central Southern California and Nevada applied 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 an article. five part seriesand paid him more than $1 million to persuade workers not to unionize. A judge later determined that Cemex committed “extraordinary violations” of the law, including illegal threats, pressuring employees to remove union stickers, questioning them about union activities, monitoring them, and firing union leader Diana Ornelas.

“It was very traumatic for me,” Ornelas previously told HuffPost.

The Teamsters ended up losing the election by a narrow margin. 179-166despite the fact that most Cemex workers had signed union cards at the start of the campaign.

The judge in the case ordered Cemex to offer Ornelas reinstatement and back pay, but despite the breadth of unfair labor practices he found, he did not order Cemex to negotiate with the union. In an appeal to the board in Washington, NLRB general counsel Jennifer Abruzzo, a Biden appointee, 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 proposed by the Democratic majority on the board was different from what Abruzzo envisioned, but it was nonetheless significant. The board, chaired by Lauren McFerran, wrote in its decision that it hoped its new rule would “more effectively discourage employers from engaging in unfair labor practices.”

In a disagreement, the board’s lone Republican member, Marvin Kaplan, accused his colleagues of seeking “dramatic changes to board law” and “departures from long-standing precedent.” He noted that a single unfair labor practice committed by the employer could result in being ordered to bargain.

Caren Sencer, an employment attorney 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 (it must be done within two weeks) and present its case against the union, even if most workers signed cards. But Sencer said she doesn’t allow the company to “abuse” the process.

“You can still say ‘I want to vote’ and tell your employees, ‘These are the experiences I’ve had with a union and why I don’t think it’s a good idea,’” he said. “What you can’t do are things you (legally) weren’t allowed to do anyway, like threaten employees.”

He added that the board was smart in framing the decision around protecting employee free choice.

“How do you fight that?” she said about the reasoning. “You say: ‘Yes, we should be able to (break) the law?’”

Although the logic may seem unquestionable to union supporters, Republicans quickly came out to criticize the decision. Rep. Virginia Foxx (RN.C.), chair of the House Education and Workforce Committee, called Cemex’s framework “un-American” in a statement, arguing that it gives labor groups “a clear advantage in unionization efforts.

“It’s a concerted effort to undermine workers’ rights and force every worker in America to join a union,” Foxx said.

Even if Cemex’s decision makes employers less likely to break the law, most unions will continue to see the NLRB’s electoral process as a broken system and one of the main reasons why union density has fallen to only 6% in the American private sector. But major reforms that many would like to see (and that Biden himself has been baffled with) are going nowhere as long as Republicans control the US House of Representatives.

Harvard’s Block said that’s why the NLRB’s actions are so significant, and why Biden’s choice of Abruzzo as the agency’s general counsel should be “exhibit A” to his claim to be the most prolific president. union.

“This is an incredibly momentous appointment,” Block said. “We would be much better off if we had different labor legislation, but we have the labor legislation that we have. And I think (Abruzzo) has shown incredible commitment to finding ways to get the greatest possible protection for workers’ rights.possible from a defective statute”.