Biden's National Labor Relations Board Issues Groundbreaking Decision to Strengthen Organizing Rights
Last week the Democratic-controlled National Labor Relations Board issued a decision that will strengthen workers freedom to organize and strongly discourage employers from breaking the law. The decision can require employers that commit labor violations during a union drive to immediately recognize and bargain with the union.
The case involves a group of Cemex Construction Materials Pacific truck drivers and trainers who voted narrowly against joining the Teamsters. However, in 2021 an administrative judge found that Cemex committed more than two dozen unfair labor practices shortly before the election including threatening, surveilling and interrogating workers, and hiring security guards to intimidate workers. The judge recommended allowing a new election to be held, but in the NLRB's 3-1 decision last Friday the board instead ordered Cemex to recognize the union and bargain with the Teamsters.
The decision will help stop employers from playing games and refusing to recognize a union when there is unquestionable evidence of majority support and deter companies from unlawfully interfering in organizing campaigns. It will also dramatically reduce “captive audience meetings,” which is when workers are forced to listen to union busting consultants spread misinformation about unions in an effort to influence them to vote against forming one. The Economic Policy Institute has found that 96 percent of employers mount anti-union campaigns during an organizing drive. In those cases, workers won just 48 percent of elections — compared to 72 percent of elections won when there was no union busting campaign.
The vote partially resurrects a policy known as the Joy Silk doctrine, which once prohibited companies from forcing a drawn-out and litigious secret ballot election before recognizing a union unless it had credible reason to doubt the legitimacy of the union. The Joy Silk Doctrine came out of a 1949 labor board ruling and was recognized for 20 years before it was replaced in the late 1960s. As Brian J. Petruska explained in the Santa Clara Law Review, the final repeal of Joy Silk in 1971 has effectively incentivized unfair labor practices because there were already no monetary penalties for this behavior.
Petruska notes that in the aftermath of Joy Silk’s repeal, NLRB complaints alleging illegal firings and intimidation of workers trying to organize unions skyrocketed, rising from about 8,000 to roughly 18,000 ten years later. The proportion of these filings that the NLRB decided had merit did not change during this period, so it’s very likely these firings were the result of ending Joy Silk.
The NLRB also recently voted to resurrect Obama-era rules, which were repealed by the Trump NLRB, that will speed up the union election process. As Bloomberg Law writes, the decisions are part of an effort by Biden appointee and NLRB General Counsel Jennifer Abruzzo to overturn roughly 50 board precedents. Some of the major precedents Abruzzo is seeking to overturn include the 1964 ruling in Hot Shoppes that permits employers, for economic reasons, to permanently replace workers on strike and a 75-year case prohibiting workers from conducting secondary boycotts. Other recent NLRB decisions that Abruzzo has fought include protections for workers using profanity during union-related activity and limiting handbook provisions that could interfere with employees’ rights to organize.