America’s resurgent labor movement has won a useful victory with a decision by the National Labor Relations Board that will make unionization easier at firms that break the law while resisting organizing campaigns.
The new framework means companies that are found to have committed illegal acts during unionization-election efforts will be forced to immediately bargain with the union rather than just have to run the election again – which is what happened previously.
Sharon Block, professor of practice and the executive director of the Center for Labor and a Just Economy at Harvard Law School, said: “It addresses … the two biggest problems with union elections right now … that they take too long and that employers actually have incentive to violate the law during the campaign.”
Block added: “This is an important decision in trying to make what I would believe is sort of a flawed law work as well as possible. Addressing twin problems of the way and the incentive to unlawfully union-bust is incredibly meaningful. I think unions will be able to devote more resources to getting to elections quickly.”
The NLRB issued the new framework as part of ruling on the construction company Cemex and the Teamsters union. It stems from a case in which cement truck drivers collected a majority of support in union authorization cards to file for a union election, at which point Cemex engaged in 20 instances of objectionable or unlawful conduct leading up to the election.
The Teamsters then lost by a vote of 179 to 166, but rather than ordering a rerun election, Cemex was ordered to bargain with the union.
A NLRB press release said: “The new standard will promote a fair election environment by more effectively disincentivizing employers from committing unfair labor practices.”
Workers must collect a majority of union authorization cards from co-workers before filing for a union election, but in the time between receiving that majority of support and holding the election, employers often hire union avoidance consultants and engage in aggressive union opposition – including retaliation, intimidation and delaying tactics – to deter workers from voting for unionization.
The new framework was issued a day after the board also rescinded delays in union elections implemented under the Trump administration, aiming to expedite the time and processes from a union election petition filing to the election and resolving post-election disputes more quickly.
Long delays and appeals have drawn out union election certifications, such as at Amazon, where objections over a rerun election at a warehouse in Bessemer, Alabama in early 2022 are still being litigated.
Labor unions and worker advocates have praised the decision as a step in the right direction toward protecting workers’ rights to organize amid widespread union opposition and union busting in the US.
“If Starbucks is found to commit a ULP after a majority of workers voice their support for a union, Starbucks will HAVE to bargain with those workers,” wrote Starbucks Workers United on Twitter (now known as X). The union has filed hundreds of unfair labor practice charges against Starbucks since the union organizing campaign began in late 2021.
Trader Joe’s United, which has won four out of six union elections at Trader Joe’s stores while also filing numerous unfair labor practice charges against the grocery chain, also praised the new framework. It is the first union to request a bargaining order based on the new framework for a store in New York City where workers went into the election with a majority support, but lost due to a tie, 76 to 76.
“The board’s ruling is a groundbreaking decision that will help workers across the country, including Trader Joe’s crew members, exercise their right to organize without unlawful interference from their employer,” Trader Joe’s United wrote in a statement.
The union avoidance law firm Morgan Lewis, which has been retained by companies such as Amazon, in a blogpost, cautioned employers on the new NLRB framework, writing: “This decision is of a different magnitude and impact. Employers would be well advised to immediately consider and engage on what the decision means for their organizations – and how they plan to respond.”
