National Labor Relations Board slams union-busting tactics by employers

(CN) — The National Labor Relations Board handed labor unions a major win Friday, with a ruling that punishes employer interference in union elections.

"It's more than major. It's landmark," University of Illinois labor law professor Matthew Finkin said in a phone interview.

The board handed down the ruling as part of a long-running dispute between the International Brotherhood of Teamsters and Cemex Construction Materials Pacific LLC, a company that employs cement truck drivers. Per the ruling, an employer has two options when 50%-plus-one of its employees in a given bargaining unit sign their union cards. It can immediately recognize and begin good-faith bargaining with the union — without a formal, secret-ballot election — or it must immediately file a petition for a formal election.

But should the board later find the employer tried to hinder a prompt, fair election, it will scrap the petition and order the employer to immediately recognize and begin bargaining with the workers' chosen union without any election at all.

"When employers pursue this option [to file for an election petition], the new standard will promote a fair election environment by more effectively disincentivizing employers from committing unfair labor practices," the NLRB said in a statement accompanying the decision.

Under federal law, only 30% of workers in a bargaining unit — a group of workers with similar jobs and interests — need to sign union cards in order for the unit to qualify for an election. But union organizers often wait until they have a supermajority of the unit's support before seeking an election, to minimize the damage that employers can do to the union's chances in the lead-up to the ballot.

One labor researcher in Chicago, speaking on condition of anonymity, said the new ruling from the NLRB will help prevent employers from derailing elections they know they would otherwise lose. As when Amazon, both the researcher and the NLRB said, deliberately sabotaged a landmark 2021 union election at its Bessemer, Alabama, fulfillment center.

“The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment," NLRB chair Lauren McFerran said in a prepared statement. "Under Cemex, an employer is free to use the board’s election procedure, but is never free to abuse it —it's as simple as that.”

The decision also comes after Cemex drivers narrowly voted against joining the Teamsters in 2019, and after an administrative law judge found in 2021 that the company had violated labor law more than two dozen times leading up to the vote.

According to the Friday ruling, these violations included "threatening employees with plant closures, job loss, and other reprisals if they selected the Union, surveilling employees and interrogating them about their union activity, prohibiting employees from talking with union organizers or displaying pro-union paraphernalia, and hiring security guards in order to intimidate employees immediately before the election."

While a step forward for union power in the U.S., the decision is also a step backward in time. From 1949 to 1969 under an NLRB standard known as the Joy Silk Doctrine, a simple majority showing of signed union cards was all a bargaining unit needed to win representation. Under Joy Silk, the NLRB ruled it was a labor violation for an employer to refuse to recognize workers' majority choice for union representation “not by any bona fide doubt as to the union’s majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union."

The ruling Friday effectively resurrects the Joy Silk Doctrine, throwing out the more election focused, so-called Gissel Doctrine that the U.S. Supreme Court unanimously approved in the 1969 case NLRB v. Gissel Packing Co., Inc. and strengthened in its 1974 case Linden Lumber Division, Summer & Co. v. NLRB.

Under Gissel, the Supreme Court held that the NLRB could force employers who rejected a card majority to the bargaining table if it found they had engaged in unfair labor practices that made a fair election unlikely — but also wrote that union cards are "inferior to the election process" and established employers' right to communicate "any views, argument or opinion" to their employees so long as those opinions didn't come with threats or bribes attached.

In Linen Lumber, the high court held that an employer doesn't commit a labor violation "simply because he refuses to accept evidence of the union's majority status other than the results of a board election," and that unions bear the burden of invoking the board's election procedure when they are refused recognition despite having enough authorization cards.

"So the Supreme Court comes along and says, 'well, we really favor elections.' That strong electoral focus made it harder and harder for workers to bargain," Finkin said, adding that long election procedures give employers time to mount more effective union busting campaigns.

"This puts the labor law back to where it was [under Joy Silk]," he said. "And it works fine. If it's not broke, don't fix it."

Re-establishing the Joy Silk Doctrine has been a major goal of NLRB general counsel Jennifer Abruzzo since she took office in 2021, along with shooting down so-called "captive audience meetings" in which employers force workers to attend mandatory anti-union discussions. Such meetings are already banned in Connecticut, Maine, Minnesota, New York and Oregon.

The labor researcher Courthouse News spoke with said it is still unclear whether Friday's ruling will make it so that captive audience meetings are considered an unfair labor practice in the run-up to a union election, but also noted it undercut Trump-era modifications to union election procedures that expanded the time between when an election petition was filed and the actual election.

"It deprives employers of the capacity to delay," Finkin agreed.

Both Finkin and the researcher said it would be hard to predict if Friday's ruling, despite its significance on paper, would be readily enforceable or durable enough to survive legal threats from employers. Finkin warned that the ruling may push employers to begin anti-union campaigns as soon as "they get a whiff" of workers organizing, long before they're served with a union card majority.

"Once employers get an inkling that workers are organizing... [they'll] just mount an anti-union campaign year-round," Fink said.

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