WASHINGTON—If you file a card-check majority for union recognition at your workplace, and the boss turns you down and demands an election instead—and then flagrantly and often breaks labor law on the way to the vote—guess what? The National Labor Relations Board now says you win your union automatically.
That’s because the bosses’ labor law-breaking—formally called unfair labor practices—has not only fatally skewed the election campaign—but made any “free and fair” follow-up balloting impossible, too, the board ruled.
The decision will help workers and unions by vastly improving the odds they win the right to unionize without going through rough boss labor law-breaking, often aided and abetted by union-busters. Combined with a prior NLRB ruling to remove some boss-erected obstacles to voting, the intent, the board said, is to truly implement the National Labor Relations Act.
Right now, “when a union requests recognition on the basis that a majority” of workers filed signed cards, the employer must either recognize and bargain with the union or petition for the election, the board said. If the firm breaks labor law, which is common, the board can void the vote and order a rerun or order immediate recognition and bargaining—but only after the union loses.
“However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the” employer’s election “petition will be dismissed, and—rather than re-running the election—the board will order the employer to recognize and bargain with the union,” the board’s release about its decision said.
The decision came in a case pitting Cemex Construction Materials Pacific, in Ventura County, Calif., and the Teamsters. Cemex broke labor law more than two dozen times. The violations were bad enough—such as outright threats to close—to not only skew that vote into a narrow union loss, but prejudice any future campaigns, balloting or bargaining.
“An employer is free to use the board’s election procedure, but is never free to abuse it. It’s as simple as that,” NLRB Chair Lauren McFerran said.
“The NLRB made the right decision with this case,” Teamsters President Sean O’Brien said in a statement. “We look forward to negotiating with Cemex—regardless of whether or not the company looks forward to negotiating with us.”
“The way Cemex conducted itself when its workers sought to organize five years ago was on par with the way elections are undertaken in a tin-pot dictatorship,” said Chris Griswold, President of Teamsters Joint Council 42 and a VP of the parent union. His council includes Southern California, Arizona and Nevada. The council is also conducting an organizing drive at Cemex plants in Nevada.
“This company fired union supporters, intimidated them, harassed them, and broke nearly every other rule under the sun. If any good came out of this company’s scorched-earth thuggery, it’s that now employers will think twice before they break the law to break the union.”
The usual procedure when a firm breaks labor law so flagrantly is for the board to void the election as impossibly skewed and order a rerun and to make illegally fired workers whole, now including debts such as credit card bills workers had to run up because of being illegally fired. But where there’s a definite pro-union majority and rampant labor law-breaking, as at Cemex, the NLRB decided a rerun order isn’t good enough. An automatic win is.
The NLRB’s ruling goes beyond present board orders, in the Supreme Court’s Gissel case.
Gissel hasn’t really worked, the NLRB said.
“Decades of experience…persuaded us Gissel bargaining orders are insufficient to accomplish the twin aims” of labor law: Letting workers freely choose whether to unionize or not and “’deterring employer misbehavior’ the Supreme Court identified in that case.
“Gissel’s focus upon the potential impact of an employer’s unfair labor practices upon a future rerun election creates perverse incentives to delay, which we believe can be diminished,” NLRB said.
“Our experience leads us to conclude application of Gissel resulted in persistent failures to enable employees to win timely representation. By making remedial bargaining orders more readily available” the Cemex decision “will ‘deter employer misbehavior’ in the period before” an election.
Otherwise, “representation delayed is often representation denied,” the NLRB declared.
Two labor law analysts applauded the ruling, but with “Yes, but….” statements.
“The NLRB’s Cemex decision is a significant victory but overlooks something critical. Workers only seek elections if they have a desire to organize in solidarity. We still need greater protections for workers to generate that solidarity,” wrote Desiree LeClerq, an assistant labor law professor at the Cornell School of Industrial and Labor Relations and a one-time NLRB staff attorney.
And Tamash Shahriari-Pasha in Harvard’s On Labor blog wrote the Cemex decision “fails to remedy situations where employers commit serious” labor law-breaking “early on in union campaigns, thereby unlawfully preventing unions from ever gaining majorities in the first place.”
In the Cemex case, the firm’s ready-mix concrete truck drivers voted against the union 166-179, the board explained. That loss more than four years ago came after the union presented 207 signed election authorization cards, more than half of the total number (366) of drivers.
Cemex “engaged in extensive unlawful and otherwise coercive conduct before, during, and after the election, which requires, among other remedial measures, setting aside the results,” the board’s General Counsel—its chief enforcement officer—and the Teamsters charged, and backed the charges with evidence. The campaign was also company-wide and coordinated from the top.
Cemex broke labor law more than two dozen times. It threatened to close the Ventura plant, costing workers their jobs, illegally spied on and quizzed workers about their union views, banned workers from talking with organizers or displaying pro-union paraphernalia “and hired security guards to intimidate employees immediately before the election.” Cemex also had its union-buster, LRI Consultants, “convey the same message,” company-wide.
Cemex also broke labor law before the vote by disciplining lead union activist Diana Orneias for allegedly talking with union organizers on what the firm called “company time.” Cemex suspended Orneias for eight days after the loss and fired her on Sept. 6, 2019, because of her union activity.
Besides issuing an immediate bargaining order, without a rerun election, the board also ordered Cemex to reinstate Omeias, eradicate its discipline, and make her whole financially.
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