07/17/2024
JUST THE FACTS
Union-busting gets riskier
Federal labor law has been essentially frozen since the Taft-Hartley Act passed over President Harry Truman’s veto in 1947, leaving Republicans and Democrats to engage in decades long trench warfare at the National Labor Relations Board to nudge legal precedents and enforcement standards in their preferred direction. The result has been an ever-escalating series of policy shifts when the balance of power in Washington flips from one party to the other that puts the fate of disputes between employers and workers in the balance.
The move: Soon after taking office, Biden ousted the Trump-appointed chief prosecutor at the NLRB and, with the help of Senate Democrats, installed union-friendly allies on the board who have adopted positions that boost workers in confrontations with businesses. In August, the Democratic board majority issued a landmark ruling known as the Cemex decision that puts a tight leash on employers in cases where agency officials determine they broke labor law during a union representation vote. It also shortened the timeline to bargaining in such cases, removing a previous standard that allowed for tainted union elections to be rerun.
The impact: The new framework significantly raises the risk that an employer could be hit with a bargaining order for even a single transgression if it interferes with an election. The NLRB also put the onus on employers to petition the agency for an election shortly after a majority of employees seek union representation — or be forced to bargain with the union without an election at all.
The upshot: The heightened threat of bargaining orders has already prompted employers to adapt to the new requirements and, combined with other pro-worker changes, emboldened unions seeking to organize workplaces by chipping away at management’s leverage. Biden styles himself the most labor-friendly president in history, and actions like the Cemex decision have given him a chance to demonstrate those bona fides. It’s something he’s sure to tout in his reelection campaign as he courts union members’ votes and stokes their political organizing skills.
