A federal judge in Boston on Tuesday ordered a cannabis dispensary operator to bargain with a union even though its workers voted against unionizing, in the first court ruling to apply a National Labor Relations Board decision creating a new path for unions to organize workers.
U.S. District Judge Myong Joun rejected claims by I.N.S.A. that a major 2023 NLRB ruling involving building materials company Cemex will likely be overturned by federal appeals courts and should not be applied to its case, saying he would not engage in "mere fortune-telling."
Joun granted the NLRB's request for a temporary injunction requiring I.N.S.A. to bargain with United Food and Commercial Workers (UFCW) and re-hire two union supporters at a Salem, Massachusetts store, who had been fired in the weeks before a 2022 election, pending the outcome of an underlying board case.
The store's staff voted 17-11 against joining the union. But Joun agreed with the board's general counsel that I.N.S.A. violated workers' rights, including by firing the pro-union employees, and tainted the election.
The Cemex decision says employers can be forced to bargain with unions if they engage in illegal labor practices during an organizing campaign, even when a union loses an election or one is never held, because that conduct can improperly discourage workers from unionizing.
Lawyers for I.N.S.A., which has denied wrongdoing, did not immediately respond to requests for comment.
NLRB General Counsel Jennifer Abruzzo in a statement said Joun correctly determined that the company's conduct had a coercive effect on workers' rights to a fair election.
"We are pleased that the district court decision provides the critical interim relief that employees need to exercise their rights under the National Labor Relations Act," Abruzzo said.
Alex Robertson, a lawyer for UFCW, said the union was pleased with the ruling.
"As we argued in our brief, questions regarding the Board’s interpretation of the Act should be decided in the ordinary course of Board administrative litigation," he said.
An NLRB regional director sued the company last year seeking a court injunction pending a ruling in the underlying board case accusing I.N.S.A. of unlawful labor practices.
An administrative judge in September in the first ruling to apply Cemex ordered I.N.S.A. to bargain with the union. The five-member board, whose decisions can be appealed to federal appeals courts, is reviewing the judge's decision.
The Cemex ruling was seen as a major boon to organized labor, establishing a blueprint for unionizing outside of the formal election process that has been in place for decades. Cemex has appealed the decision to the San Francisco-based 9th U.S. Circuit Court of Appeals.
The case is Sacks v. I.N.S.A. Inc, U.S. District Court for the District of Massachusetts, No. 23-12368.
For the NLRB: Daniel Fein and Miriam Hasbun
For I.N.S.A.: Allison Anderson and Jonathan Keselenko of Foley Hoag
For the union: Alfred Gordon O'Connell and Alex Robertson of Pyle Rome Ehrenberg
Read more:
Cannabis company is first forced to bargain with union under new NLRB test
NLRB paves way for workers to unionize without formal elections
Unions poised to capitalize on U.S. labor board rulings that bolstered organizing
