NLRB Decision Is a Major Win for Workers’ Rights

I make no secret of my distaste for Biden on this blog. He’s done a lot during his career in politics to make the US – and the world in general – a worse place to live, and a lot of what he does seems to be in service of that damnable project. That said, despite things like his approval of the Willow Project, his refusal to do anything to oust Trump’s poison pill of a Postmaster General, and his opposition to any kind of universal healthcare system, his presidency has actually done some things to make life better for ordinary USians. I don’t know whether his boast of being “the most progressive president in history” has merit, but if it does, that’s largely because it’s a very low bar to clear.

I think it’s essential to shine a light on his failures – especially those relating to the climate – but today we’re talking about something for which we can genuinely thank Biden. Reuters teased a new era of worker-friendly governance from the NLRB last December, and it looks like we are seeing that now:

Following the NLRB’s decision in Cemex Construction Materials Pacific, when workers ask an employer to voluntarily recognize a union as their bargaining representative, the company can voluntarily do so and begin good-faith negotiations.

Alternatively, the company may file a petition seeking an election, and as long as it does not commit unfair labor practices, one will be held. However, if a company does engage in such violations—or refuses to voluntarily recognize a union and fails to file a petition—the NLRB will now order the employer to recognize and bargain with the union without an election.

In other words, “union-busting just got a lot harder,” More Perfect Union said on social media. “This brings the board’s position closer to the old Joy Silk doctrine, which held that if a majority of workers signed union cards, there didn’t need to be an election at all and bosses just had to recognize the union and bargain in good faith.”

The Joy Silk doctrine came from a 1949 NLRB decision and was replaced by the Gissel doctrine in a 1969 U.S. Supreme Court case.

As VICE reported Friday:

NLRB General Counsel Jennifer Abruzzo issued a memo earlier this year demanding that the board revive Joy Silk, something that labor activists have been fighting for since it was overturned. The Cemex decision issued on Friday is a partial step in that direction.

“What this new decision does is, it’s a compromise,” said Eric Blanc, an assistant professor of labor studies at Rutgers University. “It’s not a return to ‘card check,'” the unionization process in the 1930s and ’40s that said if a majority of workers signed cards stating they wanted a union, the company was obligated to recognize and bargain with them—which Joy Silk had upheld.

“If there’s intense illegal union-busting, as is very often the case, the NLRB can force the employers to immediately recognize the union rather than have to go through another union election,” Blanc said. “But it’s far short of what many union organizers were hoping for. By not making ‘card check’ the norm, [it] still opens up the process to all sorts of legal appeals and delays, which is ultimately one of the main tactics of employers—to delay the union first and then hold things up in endless appeals. This unfortunately doesn’t avoid that dynamic, but it does get the NLRB more powers to require employers to recognize unions, and that should be at least a partial deterrent on employers’ willingness to break the law.”

Brishen Rogers, a professor at Georgetown University Law Center, said on the social media platform X that “Cemex may be the most important NLRB decision in a generation.”

It is “hard to say if it will survive review,” Rogers added. “But labor and the state can use it to change power alignments right now through organizing—which in turn would *help* it survive review.”

This is good news. I’ve come to believe that widespread unionization is the most direct path to the kind of organized labor power we would need to carry out a general strike, to force more drastic action on things like climate change, healthcare, and wealth inequality. This decision will make that a whole lot easier.

Even so, I think we should not forget Biden’s decision to break the rail strike back in December. He ended up getting rail workers some sick leave (less than they need), but I think it’s important to note that he wanted that to happen on his terms, not on the workers’ terms. The Democrats do not want systemic change, and won’t back even a nonviolent revolution. What they will do, is make that far easier to accomplish than it would be under the Christian fascist regime that the GOP wants to impose.

It is important for workers to take advantage of this NLRB and build power, and given the wave of union interest we’ve seen recently, I think they will. This is an opportunity that is unlikely to last forever, given the nature of US politics, and so I think we should expect another turn against unions and workers’ rights within the next decade. The stronger workers get before that happens, the more they will be able to resist the attack when it comes, and oust politicians who’re trying to take away the peoples’ power.

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