NLRB rules that any union busting triggers automatic union recognition
Tonight (September 6) at 7pm, I'll be hosting Naomi Klein at the LA Public Library for the launch of Doppelganger.
On September 12 at 7pm, I'll be at Toronto's Another Story Bookshop with my new book The Internet Con: How to Seize the Means of Computation.
American support for unions is at its highest level in generations, from 70% (general population) to 88% (Millenials) – and yet, American unionization rates are pathetic.
That's about to change.
The National Labor Relations Board just handed down a landmark ruling – the Cemex case – that "brought worker rights back from the dead."
At issue in Cemex was what the NLRB should do about employers that violate labor law during union drives. For decades, even the most flagrantly illegal union-busting was met with a wrist-slap. For example, if a boss threatened or fired an employee for participating in a union drive, the NLRB would typically issue a small fine and order the employer to re-hire the worker and provide back-pay.
Everyone knows that "a fine is a price." The NLRB's toothless response to cheating presented an easily solved equation for corrupt, union-hating bosses: if the fine amounts to less than the total, lifetime costs of paying a fair wage and offering fair labor conditions, you should cheat – hell, it's practically a fiduciary duty:
https://www.jstor.org/stable/10.1086/468061
Enter the Cemex ruling: once a majority of workers have signed a union card, any Unfair Labor Practice by their employer triggers immediate, automatic recognition of the union. In other words, the NLRB has fitted a tilt sensor in the American labor pinball machine, and if the boss tries to cheat, they automatically lose.
Cemex is a complete 180, a radical transformation of the American labor regulator from a figleaf that legitimized union busting to an actual enforcer, upholding the law that Congress passed, rather than the law that America's oligarchs wish Congress had passed. It represents a turning point in the system of lawless impunity for American plutocracy.
In the words of Frank Wilhoit, it is is a repudiation of the conservative dogma: "There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect":
It's also a stunning example of what regulatory competence looks like. The Biden administration is a decidedly mixed bag. On the one hand there are empty suits masquerading as technocrats, champions of the party's centrist wing (slogan: "Everything is fine and change is impossible"):
But the progressive, Sanders/Warren wing of the party installed some fantastically competent, hard-charging, principled fighters, who are chapter-and-verse on their regulatory authority and have the courage to use that authority:
They embody the old joke about the photocopier technician who charges "$1 to kick the photocopier and $79 to know where to kick it." The best Biden appointees have their boots firmly laced, and they're kicking that mother:
One such expert kicker is NLRB General Counsel Jennifer Abruzzo. Abruzzo has taken a series of muscular, bold moves to protect American workers, turning the tide in the class war that the 1% has waged on workers since the Reagan administration. For example, Abruzzo is working to turn worker misclassification – the fiction that an employee is a small business contracting with their boss, a staple of the "gig economy" – into an Unfair Labor Practice:
She's also waging war on robo-scab companies: app-based employment "platforms" like Instawork that are used to recruit workers to cross picket lines, under threat of being blocked from the app and blackballed by hundreds of local employers:
With Cemex, Abruzzo is restoring a century-old labor principle that has been gathering dust for generations: the idea that workers have the right to organize workplace gemocracies without fear of retaliation, harassment, or reprisals.
But as Harold Meyerson writes for The American Prospect, the Cemex ruling has its limits. Even if the NLRB forces and employer to recognize a union, they can't force the employer to bargain in good faith for a union contract. The National Labor Relations Act prohibits the Board from imposing a contract.
That's created a loophole that corrupt bosses have driven entire fleets of trucks through. Workers who attain union recognition face years-long struggles to win a contract, as their bosses walk away from negotiations or offer farcical "bargaining positions" in the expectation that they'll be rejected, prolonging the delay.
Democrats have been trying to fix this loophole since the LBJ years, but they've been repeatedly blocked in the senate. But Abruzzo is a consummate photocopier kicker, and she's taking aim. In Thrive Pet Healthcare, Abruzzo has argued that failing to bargain in good faith for a contract is itself an Unfair Labor Practice. That means the NLRB has the authority to act to correct it – they can't order a contract, but they can order the employer to give workers "wages, benefits, hours, and such that are comparable to those provided by comparable unionized companies in their field."
Mitch McConnell is a piece of shit, but he's no slouch at kicking photocopiers himself. For a whole year, McConnell has blocked senate confirmation hearings to fill a vacant seat on the NLRB. In the short term, this meant that the three Dems on the board were able to hand down these bold rulings without worrying about their GOP colleagues.
But McConnell was playing a long game. Board member Gwynne Wilcox's term is about to expire. If her seat remains vacant, the three remaining board members won't be able to form a quorum, and the NLRB won't be able to do anything.
As Meyerson writes, centrist Dems have refused to push McConnell on this, hoping for comity and not wanting to violate decorum. But Chuck Schumer has finally bestirred himself to fight this issue, and Alaska GOP senator Lisa Murkowski has already broken with her party to move Wilcox's confirmation to a floor vote.
The work of enforcers like DoJ Antitrust Division boss Jonathan Kanter, FTC chair Lina Khan, and SEC chair Gary Gensler is at the heart of Bidenomics: the muscular, fearless deployment of existing regulatory authority to make life better for everyday Americans.
But of course, "existing regulatory authority" isn't the last word. The judges filling stolen seats on the illegitimate Supreme Court had invented the "major questions doctrine" and have used it as a club to attack Biden's photocopier-kickers. There's real danger that Cemex – and other key actions – will get fast-tracked to SCOTUS so the dotards in robes can shatter our dreams for a better America.
Meyerson is cautiously optimistic here. At 40% (!), the Court's approval rating is at a low not seen since the New Deal showdowns. The Supremes don't have an army, they don't have cops, they just have legitimacy. If Americans refuse to acknowledge their decisions, all they can do it sit and stew:
The Court knows this. That's why they fume so publicly about attacks on their legitimacy. Without legitimacy, they're nothing. With the Supremes' support at 40% and union support at 70%, any judicial attack on Cemex could trigger term-limits, court-packing, and other doomsday scenarios that will haunt the relatively young judges for decades, as the seats they stole dwindle into irrelevance. Meyerson predicts that this will weigh on them, and may stay their hands.
Meyerson might be wrong, of course. No one ever lost money betting on the self-destructive hubris of Federalist Society judges. But even if he's wrong, his point is important. If the Supremes frustrate the democratic will of the American people, we have to smash the Supremes. Term limits, court-packing, whatever it takes:
And the more we talk about this – the more we make this consequence explicit – the more it will weigh on them, and the better the chance that they'll surprise us. That's already happening! The Supremes just crushed the Sackler opioid crime-family's dream of keeping their billions in blood-money:
But if it doesn't stop them? If they crush this dream, too? Pack the court. Impose term limits. Make it the issue. Don't apologize, don't shrug it off, don't succumb to learned helplessness. Make it our demand. Make it a litmus test: "If elected, will you vote to pack the court and clear the way for democratic legitimacy?"
Meanwhile, Cemex is already bearing fruit. After an NYC Trader Joe's violated the law to keep Trader Joe's United from organizing a store, the workers there have petitioned to have their union automatically recognized under the Cemex rule:
With the NLRB clearing the regulatory obstacles to union recognition, America's largest unions are awakening from their own long slumbers. For decades, unions have spent a desultory 3% of their budgets on organizing workers into new locals. But a leadership upset in the AFL-CIO has unions ready to catch a wave with the young workers and their 88% approval rating, with a massive planned organizing drive:
Meyerson calls on other large unions to follow suit, and the unions seem ready to do so, with new leaders and new militancy at the Teamsters and UAW, and with SEIU members at unionized Starbucks waiting for their first contracts.
Turning union-supporting workers into unionized workers is key to fighting Supreme Court sabotage. Organized labor will give fighters like Abruzzo the political cover she needs to Get Shit Done. A better America is possible. It's within our grasp. Though there is a long way to go, we are winning crucial victories all the time.
The centrist message that everything is fine and change is impossible is designed to demoralize you, to win the fight in your mind so they don't have to win it in the streets and in the jobsite. We don't have to give them that victory. It's ours for the taking.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
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Minneapolis Unions Back Call For A General Strike!
It's just for one day right now, but hopefully it will be followed by more sustained strikes.
It also comes three days after the planned Free America Walkout on Jan. 20th, backed by the Womens' March organizers.
I do wonder if it would be more effective if groups coordinated to hold these actions on the same day, if one may bleed participants from the other. Or if this is actually better, as it it will create more of a sustained effect, and draw in a broader group of participants.
Regardless, it is a tremendous relief to see US labour orgs beginning to find their spines, and call for strikes. I have thought since last November that the only way out of this without a major war (which, involving the US military, means a nuclear war) is a sustained general strike. It is the most powerful weapon we have, and it is far past time we used it.
Leading Democrats must be pushed to get on board with and back this nationwide! Call your reps!
Today in Minneapolis, those demanding justice for everyone shot and/or killed by federal agents over the last 2 months, protesters marched from Stewart Park to the memorial of Alex Pretti.
Pretti was shot and killed by border patrol agents while he was unarmed on January 24, 2026. Video shows agents removing a gun from Pretti prior to shots being fired.
The “Day Out For Democracy” rally and march was organized by Minnesota AFL-CIO.
The Haymarket affair, also known as the Haymarket massacre, the Haymarket riot, the Haymarket Square riot, or the Haymarket Incident, was the aftermath of a bombing that took place at a labor demonstration on May 4, 1886, at Haymarket Square in Chicago, Illinois, United States. The rally began peacefully in support of workers striking for an eight-hour work day, the day after the events at the McCormick Harvesting Machine Company, during which one person was killed and many workers injured An unknown person threw a dynamite bomb at the police as they acted to disperse the meeting, and the bomb blast and ensuing retaliatory gunfire by the police caused the deaths of seven police officers and at least four civilians; dozens of others were wounded
The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) is a national trade union center that is the largest federation of unions in the United States. Find out more at aflcio.org
Industrial Workers of the World (IWW), whose members are nicknamed "Wobblies", is an international labor union founded in Chicago in 1905. Find out more at iww.org
The International Brotherhood of Teamsters (Teamsters) is a labor union in the United States and Canada formed in 1903. Find out more at teamster.org
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“I don’t want to hear, ‘Oh my, we don’t have 60 votes, woe is we,’” AFL-CIO President Richard Trumka told POLITICO last week. “Figure out a
"The very survival of our democratic republic is at stake. And standing in its way is an archaic Senate procedure that allows the minority to block the majority—the filibuster. An artifact of Jim Crow. A creature of white supremacy. A procedure that was said to encourage robust debate but has turned into an instrument of government paralysis.
[..]
I don't want to hear, 'Oh my, we don't have 60 votes, woe is we.' Figure out a way to do it.”
March of Robots stomps through the streets of the future, skillfully piloted by their drivers, flashing glitzy advertisements from their display-plates.
