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A LANDMARK FEDERAL RULING AGAINST UNION-BUSTING HAS BOOSTED
ORGANIZING  
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Gabriel Thompson
August 26, 2024
Capital and Main
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_ Union elections are up in the year since the labor board created
new penalties for law-breaking employers. But an appeal could reverse
the decision. _

Members and supporters of Culinary Workers Union Local 226 picket
Station Casinos' corporate headquarters in Las Vegas on January 19,
2023 to push for a first-time union contract., Photos courtesy
Culinary Local 226.

 

FIVE YEARS AGO, after a majority of workers at Red Rock Resort in Las
Vegas signed cards to join the Culinary Workers Union, supervisors
marched them into a series of mandatory meetings. The company promised
employees free health care and new retirement benefits if they voted
down the union, and vowed to drag out negotiations if the union won.

Red Rock, which is owned by billionaire brothers and major Trump
donors Frank and Lorenzo Fertitta, also launched an anti-union
website, plastered with the faces of employees without their
permission. Then, two days before the vote, workers were greeted with
hundreds of free steaks in the employee dining room, each branded with
the same message: VOTE NO!

On election day, only 46% of the workers voted for the union.

Free steaks branded with an anti-union message were served to workers
at Red Rock Casino just days before a union election.

“They never actually wanted to listen to the workers,” said
Veronica Gomez, 57, who has worked as a housekeeper at Red Rock since
2006 and helped lead the union drive. “They never wanted to give up
any power.”

In June, though, the National Labor Relations Board, which oversees
union elections, offered Gomez and her co-workers a win
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After a protracted legal fight, the NLRB’s five-person board, which
issues final agency decisions on judicial rulings that have been
appealed, concurred with an administrative judge’s earlier decision
that Red Rock management had engaged in “pervasive and egregious
misconduct.” The board also employed, for the first time, a new
protection against union-busting that it had issued in a decision last
year called _Cemex_
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Citing _Cemex_, the board forced Red Rock to immediately recognize and
bargain with the union. 

Breaking labor laws to keep a union out had, instead, ushered it in. 

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IT’S BEEN ABOUT A YEAR since the _Cemex_ decision overturned nearly
five decades of precedent and limited an employer’s ability to
illegally undermine union support without facing meaningful
consequences. Since 1979, there has been little downside for an
employer who breaks labor law during an election, and unfair labor
practices — as such violations are known — are common. (As of late
June, for example, Starbucks’ efforts to oppose unionization have
generated 435 unfair labor practice charges from National Labor
Relations Board regional offices.) 

Except in the rarest of cases, violations simply triggered another
election — until August 2023, when the NLRB created a new
consequence for law-breaking employers in its ruling on a dispute
between the Teamsters and Cemex Construction Materials Pacific, a
cement-mixing company. Post-_Cemex_, if a majority of workers sign
cards to join a union, an employer can either recognize the union or
file a petition within two weeks for a union election.

If the employer misses the deadline, and the cards are found to be
valid, the National Labor Relations Board can order the employer to
recognize the union. And if, during the election, the employer commits
violations that require setting the election aside, the agency will
order the employer to recognize the union and begin to bargain a first
contract.
 

In mid-July, with two-and-a-half months remaining in the fiscal year,
the National Labor Relations Board announced that requests for union
elections were up 32%.

 
“With _Cemex_, if an employer destroys majority support for a union,
they don’t get a second chance to destroy it all over again,” said
Caren Sencer, an attorney with Weinberg, Roger & Rosenfeld who
represented the Teamsters in the _Cemex_ case. “Now they are just
going to have to bargain.”

There are plenty of things _Cemex_ does not fix about the unionization
process, says Catherine Creighton of Cornell University’s School of
Industrial and Labor Relations and a former attorney for the NLRB.
“In some ways, _Cemex_ exposes the weakness of the [National Labor
Relations] Act,” she said. “_Cemex_ isn’t going to get you a
first contract. Where an employer is steadfastly against getting a
first contract, the Act is really weak, because it doesn’t require
the employer to reach an agreement with the union.”

Whatever the limitations of _Cemex_, agency data suggest that the
ruling has bolstered union organizing. In mid-July, with
two-and-a-half months remaining in the fiscal year, the NLRB announced
that requests for union elections were up 32%
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and had already exceeded last year’s total of 2,594.

Data also showed that requests for election petitions filed by
employers, which before _Cemex_ were rare, had grown by a factor of
20. Sencer, who represents many unions in addition to the Teamsters,
told Capital & Main that since _Cemex_ she has also heard of more
cases in which employers voluntarily recognized a union instead of
filing for an election.

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IN ADDITION TO CREATING new consequences for illegal union-busting,
_Cemex_ also promises to speed up the unionization process, which
could in turn boost unionization rates, said Cornell’s Creighton.
“The data is quite clear that the longer it takes to get to an
election, the more likely it is that employees will vote no, because
the employer has more time to run an anti-union campaign,” she
said. 

_Cemex_ moves the process of filing for an election along by placing a
steep penalty on employers — the forced recognition of a union —
for failing to do so within a two-week deadline. Last winter, the
National Labor Relations Board also created new rules that
significantly shorten the timeline between the filing of an election
and the holding of the election itself, which include eliminating a
20-business-day waiting period and instead scheduling elections for
“the earliest date practicable.” 

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WHILE THERE ARE NOT comprehensive numbers on how many union efforts
may fall under _Cemex_, a handful of upcoming cases will test its
real-life impact. 

The largest potential candidate for a _Cemex_ bargaining order are the
Mercedes-Benz plants in Alabama, where the United Auto Workers lost a
vote in May that covered more than 5,000 workers. Immediately after
the election, the union filed unfair labor practice complaints
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with the NLRB in which they referenced _Cemex_. And in New York City,
where Trader Joe’s United, an independent union, lost a tie vote
last year and filed multiple unfair labor practice charges, the union
cited _Cemex_ and requested a bargaining order.
 

“Workers in [the _Cemex_] case have been looking for a union since
2018.”

~ Caren Sencer, labor lawyer

 
There are also three more cases in which NLRB administrative law
judges have issued _Cemex_ bargaining orders: one involving a cannabis
operation [[link removed]]
operated by Eastern U.S. chain I.N.S.A. in Salem, Massachusetts;
another involving Woodford Reserve’s Versailles, Kentucky distillery
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third involving a Colorado-based nonprofit, Big Green
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operates school gardens and was founded by Kimbal Musk, the brother of
Elon Musk. The cases have all been appealed by employers and are
awaiting final decision by the five-person NLRB board, although the
agency has won temporary injunctions in district court against the
cannabis company
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and Big Green
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to reinstate fired workers and recognize the union.

The _Cemex_ case itself is also now awaiting a ruling from the Ninth
District in California, where the employer filed an appeal that could
override the National Labor Relations Board decision. Sencer
anticipates hearings will begin this fall but doesn’t know when a
decision will be issued. For the longtime labor lawyer, the
still-lengthy timeline points to the limitations of a chronically
underfunded agency
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— something that _Cemex_ certainly doesn’t resolve. 

“Workers in this case have been looking for a union since 2018,”
she said. According to the NLRB judge’s findings, the pro-union
Cemex workers she represents were suspended and surveilled,
interrogated and intimidated by security guards. The original election
that is in dispute occurred five years ago. 

Still, Gomez, the housekeeper at Red Rock, was grateful when she
learned that the NLRB had a new way to try to force her employer to
recognize the union. “I’ve been involved for more than 10 years in
trying to get a union,” she said. “Ten years is a _long_ time. But
I also know that workers have always had to suffer to get what they
want.”

 
_Copyright 2024 Capital & Main_

* NLRB Cemex Ruling; Union Elections; Red Rock;
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