Joe Biden has been vocal about his support for labor unions, often referring to himself as “the most pro-union president in American history.” Now, his appointments to the National Labor Relations Board (NLRB) are strengthening that claim. The NLRB recently issued a groundbreaking ruling that experts believe will make it easier for workers to form unions. Known as the Cemex decision, this ruling holds employers accountable for breaking the law in order to prevent a union from forming.
Under the Cemex standard, when workers demonstrate majority support for a union, the burden falls on the company to either recognize the union or request an election by the NLRB to determine whether a majority of workers want union representation. If the company violates the law in a manner that warrants invalidating the election, the board can order the company to recognize the union and begin negotiations. This eliminates the need for a repeat election, as was previously the case.
While the board has always had the power to order employers who engage in union-busting to negotiate with the union even if they lose a vote, experts believe that the Cemex decision increases the likelihood of this outcome, thereby discouraging employers from breaking the law in the first place. Harvard Law School professor Sharon Block describes this as a major improvement, as it will lead to faster elections and less union-busting.
The goal of the board’s Democratic majority, as stated in their decision, is to create a disincentive for employers to engage in tactics such as threats, interrogations, or illegal promises to sway union support before a vote. When combined with new NLRB rules that streamline the union election process, these changes make organizing campaigns more likely to succeed. Block even referred to the ruling as a “BFD” (Big F***ing Deal), borrowing a phrase from President Biden.
While employers are likely to challenge the legality of the new process in federal court, labor leaders hope that the Cemex decision will prevail. In the past, companies were able to violate the law without facing significant penalties. However, this ruling marks a shift towards holding them accountable. AFL-CIO President Liz Shuler expressed excitement about the ruling, stating that it aligns with the principle of supporting workers in their desire to join a union.
Winning union elections can be challenging when employers mount aggressive campaigns against union organizers. The Cemex case serves as a prime example, where truck drivers at Cemex facilities in Southern California and Nevada sought to join the Teamsters union. Despite initially having majority support, the drivers narrowly lost the election, thanks to Cemex’s efforts to dissuade them from unionizing.
Cemex hired an anti-union consulting firm and engaged in multiple unfair labor practices, including making illegal threats, pressuring employees, and firing a union leader. Although the judge in the case ordered Cemex to reinstate the union leader and provide backpay, they did not order the company to negotiate with the union.
Biden appointee Jennifer Abruzzo, the NLRB’s general counsel, requested a reconsideration of the framework for when companies should be ordered to bargain with a union after committing unfair labor practices. While the board’s decision differed from Abruzzo’s recommendation, it still represents a significant step forward. The new standard aims to disincentivize employers from committing unfair labor practices while preserving the employer’s right to call for an election and voice their concerns about the union.
Republican legislators have criticized the Cemex decision, with Rep. Virginia Foxx going as far as calling it “un-American.” However, to supporters of organized labor, the decision is a positive development. Despite this progress, the NLRB election process remains flawed, and many unions see it as a major obstacle to increasing union density. Further reforms would require the support of the U.S. House, which is currently controlled by Republicans.
In conclusion, the actions of the NLRB under President Biden’s administration have the potential to make a significant impact on workers’ rights and strengthen labor unions. Jennifer Abruzzo’s appointment as the NLRB’s general counsel highlights Biden’s commitment to protecting workers’ rights within the limitations of existing labor laws. While there is room for further improvement, labor experts believe that the Cemex decision is a step in the right direction.
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