Joe Biden’s Progressive Appointees at the National Labor Relations Board Strengthen Union Support
Joe Biden has often portrayed himself as the most pro-union president in American history, and his recent appointments to the National Labor Relations Board (NLRB) have bolstered his case. Last week, the NLRB issued a landmark ruling, known as Cemex, which is expected to make it easier for workers to form unions. The decision holds employers accountable for breaking the law to prevent unionization and creates real consequences for their actions.
The Cemex Ruling and Its Implications
Under the Cemex standard, when workers can demonstrate majority support for a union, it is the responsibility of the company to either recognize the union or request an election by the NLRB to determine if a majority of workers want union representation. If the company violates the law in a way that warrants invalidating the election results, the NLRB can order the company to recognize the union and engage in collective bargaining. This eliminates the need for a rerun election, as was previously required.
Experts believe that the Cemex decision, coupled with new NLRB rules that streamline the union election process, will increase the chances of organizing campaigns succeeding. This is because it creates a disincentive for employers to engage in illegal activities such as threatening or interrogating workers or making illegal promises to undermine union support before the vote. The ruling aims to level the playing field for workers and discourage employers from breaking the law to prevent unionization.
Sharon Block, a labor law professor at Harvard Law School and a former Biden administration official, believes that the Cemex decision will lead to faster elections and less union-busting. She considers it a significant development that will have real consequences for employers who violate the law. However, employers are likely to challenge the legality of the new process in federal court, and a future Republican-led NLRB could attempt to overturn the Cemex decision.
Union Leaders’ Response and Hope for Change
Labor leaders, such as Liz Shuler, the president of the AFL-CIO labor federation, view the Cemex ruling as an exciting development. They believe it will shift the balance in favor of workers’ right to join a union and deter corporations from undermining labor laws. Shuler expresses frustration over the years of erosion of workers’ rights and hopes that the NLRB under Biden’s administration will mark a positive change.
Winning union elections has often been challenging for workers when employers actively campaign against unionization. The Cemex case itself exemplifies this struggle. Truck drivers at Cemex hubs in Southern California and Nevada sought to join the Teamsters union, but the company hired an anti-union consulting firm to dissuade workers from unionizing. Despite a majority of workers initially supporting the union, the Teamsters narrowly lost the election due to various unfair labor practices committed by Cemex.
The NLRB’s decision in the Cemex case reflects a shift in the framework for when a company can be ordered to recognize a union after violating labor laws. While the dissenting Republican member of the board, Marvin Kaplan, criticizes the decision as a departure from precedent, labor lawyer Caren Sencer believes it strikes a balance by still allowing employers to demand an election and state their case against the union within a specified timeframe.
The Need for Further Reforms
Although the Cemex ruling may deter employers from breaking the law, many unions still perceive the NLRB election process as flawed, contributing to the decline in union density in the private sector. However, major reforms sought by unions, and advocated by President Biden, are unlikely to pass while Republicans control the U.S. House of Representatives.
Despite the limitations, the actions of the NLRB and Biden’s appointment of Jennifer Abruzzo as the agency’s general counsel are seen as significant. Abruzzo’s commitment to protecting workers’ rights within the existing labor law is considered a valuable asset. Harvard’s Sharon Block believes that while labor law reform is necessary, Abruzzo’s appointment exemplifies Biden’s commitment to maximizing worker protections within the current legal framework.
