“If I try to unionize, they will just fire me.”
You’ve probably heard of people saying this and the rude reality is that for many, even though it is illegal, getting fired is exactly what happens when they try to unionize. A new decision from the pro-union Biden National Labor Relations Board is going to rebalance the scales, punishing companies that commit unfair labor practices (ULPs) in union campaigns. The NLRB made two significant, pro-union changes to the way future union organizing and representation cases will proceed. First, the National Labor Relations Board’s recent decision in Cemex Construction Materials Pacific (372 NLRB No. 130), changed the way in which unions will be able to organize private sector employers in the United States. Today, less than 10% of American workers in the private sector are union members, despite close to 75% of Americans approving of unions. Because of the Cemex, if a union has majority support and demands recognition, an employer must either (1) grant recognition without making the workers go through the additional step of an NLRB election or (2) file its own NLRB petition seeking an election. If the employer fails to take either step, the union can file an unfair labor practice charge, and the NLRB will find a violation and order mandatory union recognition unless the employer proves the union did not have majority support in an appropriate bargaining unit. If the employer files a petition for an election, (known as an RM petition) the NLRB can still cancel the election and issue a bargaining order if the employer commits virtually any unfair labor practices during the period prior to the election.
This decision is already turning union-organizing upside down, with many workers winning an increasingly large number of bids to join a union.
