[ A decision last Friday makes union organizing possible again.]
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BIDEN’S NLRB BRINGS WORKERS’ RIGHTS BACK FROM THE DEAD  
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Harold Meyerson
August 28, 2023
The American Prospect
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_ A decision last Friday makes union organizing possible again. _

, Jon Elswick/AP Photo

 

Hot Labor Summer just became a scorcher.

To listen to this article go here
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Last Friday, the National Labor Relations Board released
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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:

… the revised framework represents an effort to better effectuate
employees’ right to bargain through their chosen representative,
while acknowledging that employers have the option to invoke the
statutory provision allowing them to pursue a Board election. When
employers pursue this option, the new standard will promote a fair
election environment by more effectively disincentivizing employers
from committing unfair labor practices.

“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
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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.

How catastrophic? In the profile I wrote
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in the April 2022 print issue of the _Prospect_, I cited numbers from
Petruska’s article that showed “in the five years before _Joy
Silk_ was struck down, charges of employer intimidation totaled about
1,000 cases a year. Once the softball remedies of _Gissel_ became the
standard, charges exploded to a peak of 6,493 in 1981, after which
they fell along with unionization efforts generally.” As the new
post–_Joy Silk_ tolerance for employer coercion became the norm,
interest in organizing withered.

By the time Abruzzo became general counsel, “even labor lawyers had
forgotten about _Joy Silk_,” which had then been a dead letter for
52 years, UC Berkeley law professor Catherine Fisk told me for my
Abruzzo profile. Abruzzo, however, had had a long career as an NLRB
attorney and had also served as a special counsel for the
Communications Workers of America (CWA), a consistently militant
union. Even within the community of pro-labor attorneys, she was known
for her exceptional dedication to worker rights and her knowledge of
how the laws that once afforded them their rights could be revived and
renewed. The brief she presented to the Board in the _Cemex_ case
promoted a ruling that differs in some respects from the standards
promulgated in _Joy Silk_, but its effect is essentially comparable.

The _Cemex_ decision secures Abruzzo’s place as the most important
public official to secure American workers’ rights since New York
Sen. Robert Wagner, who authored the NLRA in 1935 (the same year he
authored the Social Security Act).

Since the days of Lyndon Johnson, every time that the Democrats have
controlled the White House and both houses of Congress, they’ve
tried to put some teeth back into the steadily more toothless NLRA.
But they’ve never managed to muster the 60 votes needed to get those
measures through the Senate. The _Cemex_ ruling actually goes beyond
much of what was proposed in those never-enacted bills.

Still, there’s one crucial element to restoring workers’ rights
that has yet to be accomplished: Companies can still indefinitely
refuse to agree on a contract. Some of the failed labor law reform
bills included provisions mandating that an arbitrator impose a
contract if no agreement has been reached after a specified period of
time (say, 90 or 180 days). Absent such a provision, workers’ rights
can still be thwarted, which we’re seeing happen in real time with
the inability to complete a first contract at hundreds of Starbucks
shops and Amazon’s warehouse in Staten Island.

Nonetheless, _Cemex_ should open the door to more organizing campaigns
than American labor has seen for decades, at least among those unions
(SEIU, CWA, the Teamsters, National Nurses United, the private-sector
wings of AFSCME, and the American Federation of Teachers, to name just
some) that still have robust organizing departments. It could help the
Steelworkers, the newly led United Auto Workers, and the Machinists to
organize the federal incentive–driven factories springing up in the
historically anti-union South.

One reason that these two landmark decisions came down last week was
that the term of one of the three Biden appointees to the Board,
Gwynne Wilcox, is about to run out. Board terms normally last for five
years, but Wilcox was appointed for just two years to fill out the
balance of the term of a member who had retired early. Once she’s
off the Board, there will be just three members, since one of the
Board’s Republican seats has now been vacant for nearly a year. (By
mutual consent, the Board is composed of three members from the
president’s party and two from the opposition.) And when it has only
three members, the Board is forbidden from making decisions that
change its rules.

The normal procedure for filling seats on the Board (like with many
multimember commissions) is that an appointee from one party comes
before the Senate for confirmation in tandem with an appointee from
the other party. However, hoping to thwart the now Biden-dominated
Board from making decisions like those of last week, the Republicans,
backed by the U.S. Chamber of Commerce, have declined to put forth a
nominee to fill the vacant Republican seat, plainly hoping that
Democrats would adhere to the custom of not bringing up an
unaccompanied Biden appointee for a vote. More precisely, they’ve
wagered that the anti-worker duo of Sens. Manchin and Sinema would
deny that nominee the 51st vote required for confirmation, using the
fig leaf of the absence of a Republican nominee to justify their
opposition.

The White House renominated Wilcox for a five-year term some time ago,
and Bernie Sanders’s Senate Labor Committee has sent her nomination
to the floor, with all the committee Democrats plus Alaska Republican
Lisa Murkowski voting to do so. For whatever reason, however, both the
Biden administration and Democratic Senate Majority Leader Chuck
Schumer have put the floor vote on hold, perhaps in the vain hope that
Senate Republicans will put forth their nominee, which Republicans
have made obvious that they have no intention of doing. As a result,
the Board is about to go down to three members, and become effectively
inert.

Hence, the timing of last week’s one-two punch on the eve of
Wilcox’s departure, even if just temporary. It will require the vote
of any one of Manchin, Sinema, or Murkowski to restore the Board to
its rulemaking authority.

Despite that drama, last week’s punch was historic. “Congress
passed the NLRA to give workers the right to deal with their work
issues immediately, not to have them delayed and denied by employers
who feel free to violate the law,” says Jules Bernstein, the doyen
of the D.C. union-side bar. “A ruling that restores that right—and
that’s what the _Cemex_ ruling does—is terrific, and long
overdue.”

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Harold Meyerson is editor at large of The American Prospect.

* Cemex Construction Materials Pacific
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* LLC; Union recognition; National Labor Relations Board;
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