A Landmark Federal Ruling Against Union-Busting Has Boosted Organizing
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.
Free steaks branded with an anti-union message were served to workers at Red Rock Casino just days before a union election.
“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.
Breaking labor laws to keep a union out had, instead, ushered it in.
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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.
In mid-July, with two-and-a-half months remaining in the fiscal year, the National Labor Relations Board announced that requests for union elections were up 32%.
“With Cemex, if an employer destroys majority support for a union, they don’t get a second chance to destroy it all over again,” said Caren Sencer, an attorney with Weinberg, Roger & Rosenfeld who represented the Teamsters in the Cemex case. “Now they are just going to have to bargain.”
There are plenty of things Cemex does not fix about the unionization process, says Catherine Creighton of Cornell University’s School of Industrial and Labor Relations and a former attorney for the NLRB. “In some ways, Cemex exposes the weakness of the [National Labor Relations] Act,” she said. “Cemex isn’t going to get you a first contract. Where an employer is steadfastly against getting a first contract, the Act is really weak, because it doesn’t require the employer to reach an agreement with the union.”
Whatever the limitations of Cemex, agency data suggest that the ruling has bolstered union organizing. In mid-July, with two-and-a-half months remaining in the fiscal year, the NLRB announced that requests for union elections were up 32% and had already exceeded last year’s total of 2,594.
Data also showed that requests for election petitions filed by employers, which before Cemex were rare, had grown by a factor of 20. Sencer, who represents many unions in addition to the Teamsters, told Capital & Main that since Cemex she has also heard of more cases in which employers voluntarily recognized a union instead of filing for an election.
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In addition to creating new consequences for illegal union-busting, Cemex also promises to speed up the unionization process, which could in turn boost unionization rates, said Cornell’s Creighton. “The data is quite clear that the longer it takes to get to an election, the more likely it is that employees will vote no, because the employer has more time to run an anti-union campaign,” she said.
Cemex moves the process of filing for an election along by placing a steep penalty on employers — the forced recognition of a union — for failing to do so within a two-week deadline. Last winter, the National Labor Relations Board also created new rules that significantly shorten the timeline between the filing of an election and the holding of the election itself, which include eliminating a 20-business-day waiting period and instead scheduling elections for “the earliest date practicable.”
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While there are not comprehensive numbers on how many union efforts may fall under Cemex, a handful of upcoming cases will test its real-life impact.
The largest potential candidate for a Cemex bargaining order are the Mercedes-Benz plants in Alabama, where the United Auto Workers lost a vote in May that covered more than 5,000 workers. Immediately after the election, the union filed unfair labor practice complaints with the NLRB in which they referenced Cemex. And in New York City, where Trader Joe’s United, an independent union, lost a tie vote last year and filed multiple unfair labor practice charges, the union cited Cemex and requested a bargaining order.
“Workers in [the Cemex] case have been looking for a union since 2018.”
~ Caren Sencer, labor lawyer
There are also three more cases in which NLRB administrative law judges have issued Cemex bargaining orders: one involving a cannabis operation operated by Eastern U.S. chain I.N.S.A. in Salem, Massachusetts; another involving Woodford Reserve’s Versailles, Kentucky distillery; and the third involving a Colorado-based nonprofit, Big Green, that operates school gardens and was founded by Kimbal Musk, the brother of Elon Musk. The cases have all been appealed by employers and are awaiting final decision by the five-person NLRB board, although the agency has won temporary injunctions in district court against the cannabis company and Big Green to reinstate fired workers and recognize the union.
The Cemex case itself is also now awaiting a ruling from the Ninth District in California, where the employer filed an appeal that could override the National Labor Relations Board decision. Sencer anticipates hearings will begin this fall but doesn’t know when a decision will be issued. For the longtime labor lawyer, the still-lengthy timeline points to the limitations of a chronically underfunded agency — something that Cemex certainly doesn’t resolve.
“Workers in this case have been looking for a union since 2018,” she said. According to the NLRB judge’s findings, the pro-union Cemex workers she represents were suspended and surveilled, interrogated and intimidated by security guards. The original election that is in dispute occurred five years ago.
Still, Gomez, the housekeeper at Red Rock, was grateful when she learned that the NLRB had a new way to try to force her employer to recognize the union. “I’ve been involved for more than 10 years in trying to get a union,” she said. “Ten years is a long time. But I also know that workers have always had to suffer to get what they want.”
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