Win for Teamsters as Labor Board Eases Path Toward Unionizing Workplaces, and Trader Joe’s Employees Jump at the Chance

The National Labor Relations Board stopped short of reimposing the ‘card check’ process of forming workplace unions, which critics fear is subject to coercion, in the otherwise labor-friendly ruling.

Michael Tullberg/Getty Images
The head of the International Brotherhood of Teamsters, Sean O'Brien, on July 19, 2023 at Culver City, California. Michael Tullberg/Getty Images

In a legal win for the Teamsters union, a National Labor Relations Board ruling will make it easier to unionize workplaces by setting new standards to discourage “employers from committing unfair labor practices” during unionization drives, and labor unions are already jumping at the chance to take advantage of the new policy.

A union representing employees at a Manhattan Trader Joe’s on Monday became the first to apply for recognition under the new framework, Bloomberg Law reported.

The labor board, though, stopped short of reinstating an old policy that would allow workplaces to unionize without a secret ballot vote in the otherwise labor-friendly ruling.

The dispute between Cemex Construction Materials Pacific and the International Brotherhood of Teamsters arose after drivers at the company voting against unionizing in 2019. The teamsters said the vote was flawed because the company intimidated its employees, and an administrative court judge agreed.

The labor board’s ruling, on Friday, goes beyond a previous ruling from the judge calling for a new election and instead requires the company to now negotiate directly with the union.

“The labor board ordered Cemex to bargain with the Teamsters in a precedent-setting move,” the union explains, “thereby ruling that all employers will now be required to bargain with a union if, during an election for representation, the employer commits labor law violations egregious enough to compromise the legitimacy of the results.”

In the case of the Manhattan Trader Joe’s, a union representing employees asked the labor board to require the grocer “to recognize and bargain with the union,” Bloomberg Law reported, even though the union “lost an election there on a tie vote in April.”

While the labor board ruling is a win for unions, the labor board’s general counsel, Jennifer Abruzzo, had asked the board to grant an even more significant victory for uions by reviving a long-defunct doctrine known as “Joy Silk.”

That doctrine would make it easier for employees to organize by requiring employers to recognize card check unionization drives. Card check refers to a path to unionizing workplaces by which a majority of employees check a card to say that they wish to form a union, but a formal election among all employees is not required.

Critics of using card check to unionize say that the process is “more susceptible to fraud and coercion,” as one employer trade group, the National Association of Manufacturers, put it, because it is clear which employees say they want to form a union, unlike in a secret ballot election.

As it stands now, employers can refuse to recognize an effort to unionize by the card check process for any reason, forcing an NLRB-approved union election. The Joy Silk doctrine demanded that employers demonstrate a “good faith doubt” of the union’s majority status in order to refuse to recognize the union.

Under the new standard, decided on Friday, an employer may still refuse to recognize a union’s claim that it enjoys majority support.

However, if the labor board determines that an employer commits what it calls “unfair labor practices” that could affect the “laboratory conditions” ahead of the election, the board will compel the employer to immediately recognize and begin bargaining with the union.

In a lower administrative court ruling, Cemex was found to have committed some two dozen unfair labor practices before the 2019 vote, including threatening, surveilling, interrogating, and hiring guards to intimidate employees before the election.

In the ruling for the Teamsters, the board questioned whether  “conducting a new election — after the employer’s unfair labor practices have been litigated and fully adjudicated — can ever be a truly adequate remedy.”

The board went on to write in the majority opinion that the new standard would allow employers to invoke a secret ballot election while also “effectively disincentivizing employers from committing unfair labor practices.”

The NLRB chairwoman, Lauren McFerran, said in a statement that the decision “reaffirms that elections are not the only appropriate path for seeking union representation.”

The Teamsters president, Sean O’Brien, called the labor board ruling “a catalyst for workers who are standing up and demanding their worth – not just at Cemex, but at every other employer in the country.”

A former Secretary of Labor who now advocates for pro-union policies, Robert Reich, said of the decision that “Union busters were just dealt a major blow.”

The labor board’s ruling “will force employers to recognize unions in the workplace if bosses commit unfair labor practices during a union election,” Mr. Reich said. “Labor laws are violated in over 40 percent of all union election campaigns.”

The National Right to Work Foundation, an organization that represents employees opposed to “coercive union power,” criticized the decision, saying that it gives unions a “blank check to force workers under its so-called ‘representation.’”

“The core principle of American labor law is that the workers choose the union,” Mark Mix said in a statement. “But the Biden Administration has turned this commonsense principle on its head.”

When asked by the Sun if Cemex was planning to appeal the ruling, a spokeswoman, Maryssa Silva said the company is “reviewing the Board’s decision and evaluating next steps.“

Ms. Silva added that Cemex is “committed to providing the best working environment and to complying with all labor laws and fair practices” and that the “National Labor Relations Board’s decision, though disappointing, does not affect that commitment.”

NLRB administrative cases can be appealed to the appropriate Court of Appeals and, ultimately, to the Supreme Court.

The New York Sun

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