An NLRB decision delivered late last month substantially lowers the legal hurdles to union recognition. But using that opening will require unions to build strong cultures of shop-floor solidarity in the face of employer intimidation.

On August 25, the National Labor Relations Board (NLRB) handed down a decision in Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters that will make it substantially easier for workers to win union recognition. The decision in effect restores elements of the Joy Silk doctrine established in 1949 and then overturned in 1971; it further solidifies the legacy of Joe Biden’s NLRB as a remarkably prolabor board compared to its predecessors.

According to the board’s decision, an employer now faces a choice when a union, “designated” by a majority of employees, demands to bargain on their behalf. The employer may either accept the demand and bargain with the union, or it may file a petition for a board-supervised election. If the employer fails to petition for an election promptly, it violates the National Labor Relations Act by ignoring its statutory duty to bargain collectively with the representatives of its employees. Moreover, if after petitioning for an election, the employer commits unfair labor practices that undermine its outcome, the board will order the employer, as a remedy, to bargain with the union.

With the possibility of a remedial bargaining order in the background, employers will now have to think twice about attempting to delay a union election with intimidation tactics. Still, the imposition of legal remedies will likely not be sufficient deterrence against union busting — while the NLRB’s new decision is certainly a boon to labor, it’s no substitute for building strong cultures of worker solidarity on the shop floor.

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