‘Seismic Shift’ in Labor Law, Easing Unionization of Workplaces, Likely To Face Court Test ‘Within a Year’
‘It’s a new day,’ a union lawyer tells the Sun. ‘Employers are on notice.’
Ahead of Labor Day, the National Labor Relations Board gave unions a ruling that may make it easier for them to organize during a time when union membership in the American workforce has fallen to an all-time low. The first test of the precedent, though, is already upon us, and some advocates and scholars are skeptical of the effect it might have.
Earlier this month, the labor board set a new precedent requiring employers to recognize and bargain with unions — sidestepping a secret-ballot vote — if companies undermine the fairness of the vote in a unionization election. The ruling followed a dispute between a cement-making company, Cemex, and the Teamsters union, which claimed the company interfered in a vote over unionizing truck drivers.
This precedent is a major departure from the old doctrine, under which the only punishment for violating the National Labor Relations Act ahead of a union election was the potential of having to re-run that election.
The decision in the Teamsters dispute was hailed as a win for union organizers and the labor movement in the United States, given that employers are often accused of engaging in unfair practices in the leadup to unionization elections. A study from the left-leaning Economic Policy Institute found that employers are charged with violating federal law in more than 40 percent of all union election campaigns.
The pro-business U.S. Chamber of Commerce says that under the new standard in the Cemex case, “the burden is now on the employer to petition the NLRB for a secret ballot election” in the event that a majority of employees in a company say they want to form a union. “If an employer does not do so,” the chamber warns, the labor board can sidestep a secret-ballot vote and “certify the union based on signature cards alone and demand that the employer begin collective bargaining.”
In recent years, union elections and tactics deployed by employers have made headlines at workplaces including Trader Joe’s, Amazon, and Starbucks. The first case seeking to test the labor board’s new precedent is coming from a Trader Joe’s at Manhattan, where the union lost its election over whether to unionize the workplace after labor organizers say the company unfairly interfered in the election.
With a newly supportive labor relations board, courtesy of President Biden’s appointments, public support for unions is near a recent high. A Gallup poll released Wednesday found that 67 percent of Americans view unions positively, raising the question whether the tide is turning for organized labor less than a year after union membership reached an all-time low of 10.1 percent of the workforce. That contrasts with 20 percent of the workforce in 1983, the Bureau of Labor Statistics reports.
The director of the New York University Center on Labor and Employment Law, Samuel Estreicher, suggests that the impact of the labor board ruling in the Teamsters case might be limited.
“It’s going to help,” Mr. Estreicher said of the ruling. “But the problem with the unions is that the unions are not very good at presenting a positive case to the employees or the employers.”
In Mr. Estreicher’s opinion, this ruling alone isn’t enough to change the trajectory of union membership rates in America. He also says that the ruling is likely to be tested in the courts “within a year.”
Some union organizers express a more optimistic view. One organizer at the Manhattan Trader Joe’s testing the ruling, Jordan Pollack, tells the Sun: “We’re still even spreading the word to our fellow co-workers.”
“The sentiment has been generally positive — joyful — we don’t know what’s to come but we’re hopeful,” Ms. Pollack says.
On Monday, Trader Joe’s United filed on behalf of employees at a location at the Lower East Side of Manhattan seeking a bargaining order under the new Cemex precedent. At that location, the union lost an election in a 76-to-76 tie vote. Now, it is hoping to get a bargaining order from the labor board that alleges the company committed unfair labor practices.
A lawyer for the union, Seth Goldstein, tells the Sun that regardless of whether the standard is applied retroactively, “it’s a new day. Employers are on notice.”
“We’re not going to be the only union doing this,” he said. “We had an interesting situation with a tie vote but there are going to be many unions doing this.”
Mr. Goldstein speculates that unions representing Starbucks and Amazon are likely to follow suit, adding: “The importance of the process is really again that the board is recognizing that re-run elections don’t work.”
Trader Joe’s has not responded to multiple requests for comment. The union told the Sun in a statement that it is “thrilled” that the employees at the Lower East Side location “have this opportunity for union recognition under the new Cemex ruling.”
The Amazon Labor Union, which has struggled to win union elections in locations such as the company’s Bessemer, Alabama, warehouse, also celebrated the new precedent.
The chief of staff of the Amazon Labor Union, Evangeline Byars, tells the Sun that the union is generally optimistic about the ruling but is concerned it may be a short-lived and, perhaps, unevenly applied victory.
“With the current people that are at the NLRB, they seem to be bringing back decisions that are actually equitable or fair,” Ms. Byars said. “If administration continues we should be fine.”
Ms. Byars said that there was at least one case where the union expects the new precedent to apply, at an Amazon facility at Moreno, California, a city about 50 miles outside Los Angeles.
Last year, the union at Moreno withdrew its petition to hold an election just three days after another location, at Albany, New York, voted against unionizing. Since then, the union has filed 27 unfair labor practice complaints related to the Albany facility.
Ms. Byars said the union wasn’t expecting the new precedent to apply to the Albany case because it would have to be applied retroactively.
Amazon did not immediately respond to a request for comment.
While companies involved in cases before the NLRB have been relatively quiet on the new precedent, opponents of organized labor have been quick to characterize it as a revival of card check union drives and the death of secret-ballot elections.
Card check drives take place when a majority of employees in a workforce presents management with signed cards saying the employees want to join a union. Under previous precedents, employers would be required to recognize unions when presented with enough cards. Critics, such as a business group, the National Association of Manufacturers, contend this process can be subject to interference and even coercion by unions because the signature cards are public, unlike a secret-ballot election.
Organizations that oppose “coercive union power,” such as the National Right to Work Foundation, condemned the Cemex ruling, telling the Sun that it would be “substituting union boss claims of support via ‘card check’ over secret ballot elections.”
In a statement to the Sun, the National Right to Work Foundation’s president, Mark Mix, said “the Biden NLRB has plumbed new lows by shamefully but unsurprisingly tossing out workers’ individual rights and granting Big Labor a blank check to force workers under its so-called ‘representation.’”
Mr. Mix added that earning employees’ “voluntary support in an election will no longer pose an obstacle to union bosses bent on expanding their power and forced-dues revenue by any means necessary.”
Another group opposed to the ruling, the Coalition for a Democratic Workplace, claimed that the decision eroded the right of employees to participate in a secret-ballot election.
“Not only is CDW disappointed in the ruling, but we’re disappointed that the Board chose to move forward with such a fundamental change to labor law without seeking input from stakeholders,” the organization’s chairwoman, Kristen Swearingen, said in a statement.
The coalition went on to say that it agrees with the sole dissenting member of the NLRB, Marvin Kaplan. Mr. Kaplan argued in his dissent that the new policy “defeats, rather than effectuates, the policies of” the foundational federal labor law, the National Labor Relations Act, by creating a path to circumvent secret-ballot elections if employers are found to interfere with union elections.
Mr. Estreicher says that characterizing the ruling as the revival of card check could be misleading because the ruling maintains secret-ballot elections as the standard way to unionize, except when an employer wants to voluntarily recognize a card check or in cases where the employer is found to violate the law ahead of an election.
“This opinion is reasonable and it takes into account the employer’s legitimate concerns,” Mr. Estreicher said, though he added it won’t be enough to single handedly revive unions nationwide.
“It’s too early to say that,” he said. “The question is: Can they get it back in manufacturing, shipping, construction?”
Mr. Estreicher, who’s been studying and writing on the topic for more than 40 years, said nothing’s going to change “until unions can change how they sell themselves and we see some improvements in the law relating to union access to the employees.”
Of the unions’ recent high approval rating, he says it “means there’s a beginning reservoir of support unions can draw on,” adding: “I hope they don’t waste it with unnecessary militant rhetoric.”