[ The regulatory climate for unions is good. What will they do
with it?]
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IT’S UP TO UNIONS TO MAKE THE NLRB MATTER  
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Hamilton Nolan
August 28, 2023
In These Times - Labor
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_ The regulatory climate for unions is good. What will they do with
it? _

New NLRB rules could help the RWDSU campaign to unionize Amazon. ,
Photo by Patrick T. FALLON / AFP

 

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
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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
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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
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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
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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
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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
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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
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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
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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
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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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Hamilton Nolan [[link removed]] is
a labor writer for _In These Times_. He has spent the past decade
writing about labor and politics for Gawker, Splinter, The Guardian,
and elsewhere. More of his work is on Substack
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* National Labor Relations Board; Unfair Labor Practises; Union
Organizing;
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