The Biden Administration Just Made Organizing a Union Exponentially Easier

Unions are hot right now, but you wouldn’t know it from the historically puny percentage of workers who are members. The news is full of high-profile organizing drives at Amazon and Starbucks, and in food service, retail, and nonprofits; strikes or possible strikes by autoworkers, Hollywood writers and actors, and Las Vegas hospitality workers; and President Joe Biden’s historic visit to striking workers on the picket lines in Detroit. Public support for unions is at an all-time high, and a majority of American workers say they would join a union if they could.

Despite all this activity and enthusiasm, though, the percentage of workers who are union members has continued to decline, as it has for decades. At the labor movement’s peak strength in the mid-1950s, about a third of non-farm workers were unionized. That number fell slowly through the 1960s and then rapidly starting in the 70s, to a low of just 10.1 percent in 2022.

One big reason for the huge disparity is an antiquated labor law regime that corporate interests have successfully rigged against workers, making it easy-peasy for employers to kill workers’ organizing campaigns.

But at the end of August, the National Labor Relations Board, which has a 3–1 Democratic majority thanks to President Biden’s nominations, announced two party-line actions that should eliminate a common union-busting technique. These changes make the current moment the best time in decades to form a union, both from the point of view of workers who want a voice at their own workplaces and in terms of workers’ collective power to broadly improve pay and working conditions, reduce inequality, and build a functioning democracy.

For more than 50 years, employers have been able to thwart their employees’ attempts to form unions in three simple steps (I have often wondered why “union avoidance” lawyers and consultants make so much money, given how straightforward this is):

1. When workers give their boss signed union cards showing a majority of them want to form a union, refuse to recognize or bargain with the union.

2. Use the NLRB’s sluggish processes to delay an election for weeks or months.

3. Use that time to retaliate against or threaten workers so the same group that signed union cards ultimately votes against forming the union they wanted.

Retaliation and threats are against the law, but the legal consequences are farcical. If an employer commits an unfair labor practice in the period before a union election, the NLRB will often, and I am not kidding here, require the employer to put up a poster saying they won’t break the law again, and then do the election over again.

The NLRB’s recent moves, however, should throw several monkey wrenches into this strategy. On Aug. 24, the NLRB issued a final rule that will speed up union elections, screwing up Step 2 of employers’ union-busting playbook. The rule, effective Dec. 26, will eliminate common delay tactics that help employers: pointless waiting periods, the chance to request numerous extensions, and the opportunity to flood the process with irrelevant arguments.

In an even more important move, on Aug. 25, the board decided a case called Cemex that should prevent employers from using Steps 1 and 3 of the anti-union strategy. Under Cemex, if a majority of co-workers agree to form a union and ask their employer to bargain with them, the employer now has three choices, quite different from the old ones:

1. Respect the workers’ choice by recognizing and bargaining with the union.

2. Insist on an election, but refrain from committing unfair labor practices before the vote.

3. Insist on an election and commit unfair labor practices, but then be ordered to recognize and bargain with the union based on its original majority.

For workers trying to organize their workplaces, this is game-changing. Regardless of what the employer does, the outcome honors the workers’ choice and discourages the employers from breaking the law.

There is good historical evidence that Cemex will result in a lot less illegal behavior by employers. Brian Petruska, a union labor lawyer (and a friend of mine), wrote a law review article in 2017 laying out a case for the NLRB to return to an earlier cousin of Cemex, which went by the more delightful name Joy Silk. Under Joy Silk, which was in effect from 1949 to 1969, when workers sought recognition from their employer based on majority support, the employer was required to recognize and bargain with the union without an election unless the employer had a good-faith doubt about the union’s majority status.

Petruska’s article showed that the NLRB’s abandonment of Joy Silk in 1969 “triggered a massive increase” in employers committing unfair labor practices during organizing campaigns. It also coincided with the dramatic downturn in the portion of workers represented by unions that started in the ‘70s. While Cemex differs from Joy Silk in that it permits employers to insist on elections even without any good-faith doubt about the workers’ majority support for the union, it should similarly discourage law-breaking and allow workers to unionize without fear of retaliation.

Petruska noted that, beyond increasing fairness in individual union elections, Cemex should also make it possible for workers to build power more broadly. “Union power ultimately comes from monopolizing wage standards, which makes universal coverage a critical factor to union strength,” he observed. American private-sector labor law is based on organizing individual worksites, one at a time. For many years, critics of this system have pointed out that a better way to create a fair bargaining relationship between workers and employers would be to add sectoral bargaining, in which workers can bargain for wage, benefit, and other standards that cover an entire industry or sector. Sectoral bargaining occurs in some European countries and was also used in the U.S. in the 1930s and ’40s. Of course, the current Congress is about as likely to enact a sectoral bargaining law as they are to retire together to raise a herd of unicorns.

Petruska argues that Cemex could give unions “a plausible way to execute a sector-wide organizing campaign.” While it wouldn’t be easy, unions could sign up the majority of workers in worksites across a sector and then request recognition from all the major employers at the same time. Then, he says, “One way or another, Cemex gives unions a path to emerging from a series of Board processes with essentially all, or close to all, employers required to negotiate across the table with them”—a sectoral bargainingesque result without the need for a statutory labor law overhaul.

The potential of Cemex and the election rule to help reverse the decadeslong slide in union membership has a looming potential expiration date. If a Republican wins the next presidential election, he will replace Biden’s NLRB nominees with anti-union lawyers who will reverse Cemex (and many other Biden NLRB precedents). And, as with any change that gives regular people meaningful power to improve their own lives and communities, there is a risk that the oligarchic right-wing policymaking bodies known as our federal courts could strike down these NLRB decisions.

In the meantime, though, there’s quite literally no time like the present for workers looking to unionize to give it a try.