The restoration of legal workers’ rights has begun

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Another week in the Biden presidency, another breakthrough in the battle to restore workers’ rights and power. On Monday, the National Labor Relations Board’s chief counsel in one of its South West regions filed a brief with the Board asking it to overturn a number of key earlier Board decisions that had significantly weakened the rights of workers to form a union. Following guidelines that General Counsel Jennifer Abruzzo has issued since taking office last summer, Fernando Anzaldua of the Commission’s Phoenix office asked the Commission to rule that the negligible penalties that a judge of law had imposed on an employer were insufficient. More importantly, much more importantly, he also asked the board to reverse decades-old rulings that had served as the basis for this judge’s rulings.

Cases that Anzaldua has asked the Council to set aside include Sysco Grand Rapids, in which the Board held that even though the misconduct of the employer prevented a majority of employees from having their union recognized, the time that had elapsed between the Board’s determination of the misconduct and the initial training of the pro-union majority was too long for the Commission to order the employer to recognize the union and enter into negotiations. In effect, Sysco allowed management to avoid recognizing its workers’ union simply by making so many calls and requests for delays that the elapsed time would exceed Syscois the norm.

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Following a recent memo from Abruzzo, Anzaldua also asked the Board to reverse its decision in Babcock and Wilcox, which allowed employers to compel employees to attend anti-union management meetings. Anzaldua pointed out that unions cannot compel employees (or even their own members) to attend pro-union meetings, thus creating a double standard on the issue of an employee’s right not to attend meetings or to be subject to the arguments of either party.

More importantly, following a memo from Abruzzo last September, Anzaldua asked the Council to restore Joy Silk, a Commission ruling in effect from the 1940s to the 1970s, which required an employer to begin bargaining with a union that had demonstrated majority worker support, unless the company could show that it had doubts in good faith of this majority support. Beginning not with a Council decision but with a concession by Council counsel in argument before the Supreme Court, Joy Silk had effectively been overturned, so that almost any level of authenticated worker support for unionization and any level of employer violation of the law would result in a Board order to recognize the union and enter into negotiations with him. Anzaldua’s brief cites studies showing the astronomical increase in employers’ use of unfair and illegal labor practices and the precipitous decline in the number of union organizing campaigns once Joy Silk was effectively repealed.

If the Board were to vote for these arguments, the legal playing field of employer-employee relations, which has tilted heavily toward management over the past 50 years, would be considerably leveled. Anzaldua also cited a Supreme Court decision noting that the Board is free to adapt decisions to changing economic and labor circumstances – although it is, alas, far from clear that the Supreme Court actually think so.

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