As you fire up the grill this Labor Day weekend, crack open a cold one in celebration of recent National Labor Relations Board (NLRB) decisions. Last week, the National Labor Relations Board (NLRB) breathed new life into American workers' right to unionize. With two major decisions, the NLRB closed legal gaps and eliminated delays that have long allowed employers to undermine unions.

What Happened? 

In the landmark case of Cemex Construction Materials, LLC, the NLRB laid out a simplified path to union recognition. If a majority of a company’s workers sign cards supporting a union, the company has two options: recognize the union voluntarily or request a formal NLRB-run election. Here’s the kicker: if the employer engages in any union busting tactics during the period leading up to the NLRB election (the M.O. of many large companies in recent decades), the NLRB will mandate that the employer recognize the union and engage in bargaining.

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The Cemex ruling came hot on the heels of another that set rules requiring NLRB elections be held in a timely fashion, curtailing the ability of employers to delay union representation elections indefinitely. Taken together, these decisions rejuvenate a labor movement in which unfair practices have reduced private sector union-membership from a peak of 35% to just 6% today, eviscerating America’s middle class in the process.

Diana Ornelas was a driver fired by Cemex for organizing workers. The NLRB found that her firing was unjustified and and was intended to intimidate workers to vote against unionization. Their intimidation apparently worked. -- Teamsters photo

Diana Ornelas and the Bullies at Cemex

In 2019, Cemex managed to narrowly defeat a union vote that had been lobbied for by workers, after “traipsing all over the law,” according to a story in the Huffington Post. Before the vote Cemex illegally fired Diana Ornelas, a driver who had organized her co-workers. Cemex allegedly spent over a million dollars in their zeal to squash the union effort. A judge at the National Labor Relations Board said the company’s campaign was so rife with threats he ruled that Cemex committed “extraordinary violations” right up until ballots were cast.

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The HuffPo story explains, “The case offers a window into how aggressively many companies respond when workers exercise their right to form a union — even at a place like Cemex, which already employs Teamsters members in other locations and has previously negotiated contracts with the union.”

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Ms. Ornelas, the company driver who was fired for organizing, said, “It was so traumatic for me.”

The Joy Silk Doctrine was established in 1949 to help poorly represented workers in the textile industry more easily achieve union-hood. After serving workers well, it was abandoned 25 years later. The image above is from an early 20th century textile mill in North Carolina, before the NLRB made child labor illegal.

A Return To Form

The two rulings also signal a return to long-abandoned labor standards. They partially revive the Joy Silk doctrine, which the NLRB had abandoned in the early 1970s. This doctrine required employers to negotiate with unions when a majority of employees had voted for affiliation. 

Brian Petruska, an attorney for LIUNA and the author of a legal paper that partially inspired the NLRBs decisions, called the set of rulings a “sea change” and “a home run for workers.” He added that the rulings mark a return to “a system with no tolerance for employers’ coercion of their employees” when employees exercise their legal right to organize. 

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More Work To Be Done

Despite these wins, the labor movement still faces headwinds. The absence of a provision to impose an arbitrator-dictated contract after a set period of time leaves a loophole that employers can exploit to stall negotiations. This is the reason why high profile unionization attempts at Starbucks and Amazon have stalled as workers have not been able to sign a first contract with their employers.

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And despite the rulings being a huge win for worker’s right to unionize, they do little to address unfair practices that leave already unionized workers out in the cold. Nowhere are practices like this more evident than in New York City’s construction industry. Here, rampant corner-cutting, wage theft, and rule violations still go unpunished, giving non-union developers a free pass to  underbid jobs and cut out union workers.

If you are shopping for real estate in New York, there’s one simple act you can take to support workers and ensure you are buying the highest quality real estate. Ask your realtor: “who built this building?”

Mark Colangelo is a writer and blogger.