John Lamparski/NurPhoto via AP
Demonstrators rally in front of Amazon CEO Jeff Bezos’s residence calling for workers’ rights and an end to union-busting, November 26, 2021, in New York City.
Another week of the Biden presidency, another advance in the battle to restore workers’ rights and power. On Monday, the National Labor Relations Board’s chief counsel in one of its Southwest regions filed a brief with the Board asking it to overturn a number of the Board’s key previous rulings that had substantially weakened workers’ rights to form a union. Following the directives that General Counsel Jennifer Abruzzo has issued since taking that post last summer, Fernando Anzaldua, of the Board’s Phoenix office, asked the Board to rule that the negligible penalties an administrative law judge had levied against an employer were insufficient. More importantly—vastly more importantly—he also asked the board to overturn several decades-old rulings that had provided the basis for that judge’s decisions.
The cases that Anzaldua asked the Board to reverse include Sysco Grand Rapids, in which the Board ruled that even if employer misconduct obstructed a majority of employees from having their union recognized, the sheer amount of time that had elapsed between the Board’s determination of misconduct and the initial formation of the pro-union majority was too long for the Board to order the employer to recognize the union and begin bargaining. In effect, Sysco has enabled management to avoid recognizing its workers’ union simply by making so many appeals and motions for delay that the time elapsed would exceed Sysco’s standard.
Following a recent Abruzzo memo, Anzaldua also asked the Board to overturn its ruling in Babcock & Wilcox, which permitted employers to compel employees to attend management’s anti-union meetings. Anzaldua pointed out that unions cannot compel employees (or even their own members) to attend pro-union meetings, creating a double standard on the matter of an employee’s right not to attend meetings or be subjected to either side’s arguments.
Most significantly, following an Abruzzo memo of last September, Anzaldua asked the Board to reinstate Joy Silk, a Board ruling that was in place from the 1940s through the 1970s, which required an employer to begin bargaining with a union that had demonstrated majority worker support unless the company could demonstrate that in good faith it doubted that majority support. Beginning not with a Board ruling but with a concession by a Board lawyer in oral argument before the Supreme Court, Joy Silk had effectively been negated, so that almost no level of authenticated worker support for unionization and no level of employer’s violation of the law would result in an order from the Board to recognize the union and enter into bargaining with it. Anzaldua’s brief cites studies showing the astronomical rise in employers’ use of unfair and illegal labor practices and the precipitous decline in the number of unions’ organizing campaigns once Joy Silk was effectively repealed.
Should the Board vote to uphold these arguments, the legal playing field for employer-employee relations, which has tilted steeply toward management for the past 50 years, would be considerably evened out. Anzaldua also cited a Supreme Court ruling noting that the Board is free to adapt rulings to changed economic and labor-related circumstances—though it’s far from clear, alas, that the current Supreme Court actually believes that.
