Elections Have Consequences

Almost exactly a year ago, (link) I noted that the NLRB had issued a ruling that stated that when an employer breaks the law during a unionization election, the remedy is to declare the union to have won the election and direct that company to begin negotiating on a contract immediately.

We are now seeing the fruits of this ruling:

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.

“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. 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. Citing Cemex, the board forced Red Rock to immediately recognize and bargain with the union. 

………

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.

I thought that it was good news at the time, but I did not realize just how good the news was..

Not only does it offer real disincentives for employers breaking the law, but it also speeds up the unionization process.

Assuming that SCOTUS does not strike this rule down, and that is a big if, this is a major win for American workers.