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The happy times are here at the National Labor Relations Board. The agency, which has been the brightest beam of sunshine in the Biden administration’s stormy attempts to empower organized labor, passed down a decision last week that could make it meaningfully easier to organize unions — potentially the first of a wave of pro-union decisions that could be coming before the end of Biden’s term. It’s nice to have the government on our side, for once. But these rulings are only one brick in an entire wall of power that the labor movement needs to build, before all of the gains we’re celebrating now get swept away.
Last week’s NLRB decision in a case known as Cemex should go a long way towards disincentivizing companies from illegal union busting tactics. The new rule says that when the majority of a company’s employees sign union cards and ask for recognition, the company must either recognize the union, or file a petition requesting a formal election within two weeks. In a crucial change, though, “if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and — rather than re-running the election — the Board will order the employer to recognize and bargain with the union.”
Currently, the employer playbook is to deny recognition, stall for as long as possible before the formal election, and use the time in between to lie and intimidate and harass workers so much that they decide to vote “no.” Employers routinely use illegal tactics during that union busting period (think Starbucks firing workers and closing stores when they try to organize), because they know that any unfair labor practice (ULP) charges will take months or years to be litigated, and carry paltry penalties. Now, even if companies do demand a formal election, they will have to think very carefully about staying within the bounds of the law when they recite their trite anti-union talking points, because if they commit any serious ULPs, they could be automatically forced to recognize and bargain with the union.
This is something. It’s not a panacea, but it’s a step. It should make the grossest abuses by major companies less common. It shifts the onus for obeying existing labor law further onto the employer, rather than forcing unions to act as cops and prosecutors and spend years pursuing a slew of ULPs, which won’t be decided until long after they have served their purpose of preventing a successful union drive. The new standard won’t stop all the highly paid anti-union consultants from writing outrageously misleading scripts about the horrors of unions that workers will have to sit through, but it should begin to change the fact that it has long been rational for employers to break these laws, because the downside for doing so was so small.
In coming weeks, we could also see the NLRB issue several more decisions that could expand the speech rights of workers, empower strikes, and restrict the scope of “management rights” provisions that companies use to do whatever they want. Jennifer Abruzzo, the NLRB’s general counsel, is pushing as hard as possible to fully transform America’s existing suite of regulations into one that helps workers organize, rather than hinders them. It remains to be seen how much of her vision will become a reality, but Abruzzo and the NLRB are proving to be the single best reason for the Left to support Joe Biden.
After being beaten down (or, in the best of times, just ignored) by U.S. presidents and their regulators for 50 years, unions are prone to exulting at small gains. That can cause them to lapse into satisfied rest when they should instead be stomping on the accelerator. For the sake of maintaining a proper perspective, let me pull back here to articulate the full context of this nice NLRB decision. Cemex may dissuade the next Starbucks or Amazon-type employer from wantonly firing organizers and telling outright lies — or it may not, because if an employer fears that they will lose the union vote, and the penalty for grotesque ULPs is simply to be forced to accept having a union anyhow, they may reason that it’s still worth breaking the law, because they would end up with a union either way. The limitations of even these better regulations point to the need for harsh financial penalties for illegal union busting, and for a rule that would force companies into arbitration if they stall and refuse to bargain a first contract.
Getting that sort of really meaningful labor law reform would take something like passing the PRO Act. That won’t happen as long as the filibuster exists. Until all the Democrats (including Biden!) who claim to be union-friendly are ready to scrap the filibuster, it’s a useless dream. Furthermore, as soon as the next Republican president is elected, you can rest assured that the NLRB will be turned into an agency dedicated to rolling back every single helpful reform that Abruzzo is now working to pass. And — more important than any of this — even with a pandemic that radicalized millions of workers, historically high public popularity of unions, and the most pro-union president in our lifetimes, union density has continued to go down every year.
The wind is at our backs. But the ship still isn’t going anywhere.
Celebrate this marginal regulatory improvement, sure. Be happy we have a good rather than a bad NLRB, and a president whose instinct is to assist rather than crush organized labor. But do not for a second think that we have won anything yet. The conditions for the labor movement to organize millions of new workers and truly shift America’s balance of power towards working people are much better than usual, but we have yet to see the tangible evidence that the institutions of the union world are using this opportunity to leap into action and pour resources into organizing, rather than watching their bank accounts swell as the percentage of workers in unions shrinks.
The Democratic Party is a transactional partner to labor. It will only help us to the extent that we are strong enough to push it to do so. Joe Biden does not pass out union cards. The NLRB does not organize workers. Only the labor movement can do that. Sometimes, like now, the government offers us a small step up. It won’t mean much for the world unless we take it as a signal to start running.
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