- Currently, employers can choose to recognize a union formed by their workers, or workers must go to the vote.
- Jennifer Abruzzo, general counsel for the National Labor Relations Board, wants to change that.
- Abruzzo wants to restore an old doctrine of union formation, which would be a seismic change for the movement.
In December 2021, Amazon workers at a Staten Island warehouse asked the tech and retail giant to voluntarily recognize their union so they could begin bargaining immediately.
Instead, workers were unable to vote on their union until more than three months later, eventually becoming the first warehouse to unionize under the Amazon Labor Union.
The process has taken so long because under current law when workers say they’ve formed a union, companies can choose to voluntarily recognize them and start bargaining immediately, but they often don’t. not.
The other option — which has happened at big names like Starbucks, Amazon and The New York Times — is to have workers go to a secret ballot election.
Both of these processes could change if Jennifer Abruzzo, the Biden administration’s general counsel for the NLRB, is successful. A former attorney for the Communication Workers of America, Abruzzo wants to revive a more than 50-year-old process called the Joy Silk Doctrine.
Named after Joy Silk Mills, this process can allow workers to show they want a union by having the majority of union permission cards signed – known as card verification – instead of a formal voting process. Unless the employer doubts in “good faith” that this is a real majority, he must start negotiating with the union. Abruzzo filed a brief in April to the NLRB board saying Joy Silk should be reinstated.
“Joy Silk is logically superior to the ability of current Commission law to deter election interference,” Abruzzo wrote in his brief. “This directly discourages an employer from engaging in unfair labor practices during union organizing drives to avoid a duty to bargain, as this will usually result in the imposition of a bargain order.”
After Joy Silk was replaced, Abruzzo wrote, unfair labor practices “increased dramatically” and, “in turn, the number of elections dropped precipitously and, as a result, union density is now close to its historic low”.
It is a decision that has already won the support of union leaders. “Restoring Joy Silk in its original form would prevent employers from playing games and refusing to recognize a union when workers have clear evidence of majority support and would deter employers from unlawfully interfering in organizing drives,” Liz Shuler, president of the AFL-CIO, the nation’s largest labor federation, wrote in a Tweeter.
But Glenn Spencer, senior vice president for employment policy at the right-wing American Chamber of Commerce, said “there are a number of reasons why the board abandoned the process” and that the process card verification is “inherently unreliable” because there are a whole assortment of reasons why people sign union cards.
“The simple fact is that Congress has repeatedly rejected efforts to make card verification the preferred process,” Spencer said.
If Joy Silk were reinstated, it would mark a seismic shift in union organizing and how quickly a group of workers can start negotiating a contract.
Elections can be a long process, and they’ve gotten longer, as Bloomberg’s Ian Kullgren reported in 2021. In 2020, according to Bloomberg’s calculations, the median time between filing an election and actually voting was 31 days. From 2016 to 2019, it took a median of 24 days. Part of that may be because Trump’s NLRB board has enacted new rules that could lengthen and complicate the election window.
Employers also frequently resort to anti-union tactics during elections: a 2009 article by the left-wing Economic Policy Institute found that 96% of employers “campaigned against the union” during an election. In cases where employers mounted an anti-union campaign, workers won only 48% of elections, compared to 72% of elections won when there was no campaign.
Currently, employers can mandate anti-union meetings, called captive hearings. It’s also something Abruzzo wants to change, urging the board to declare mandatory meetings illegal.
“Workers don’t feel they can leave, even though they have the right to refrain from listening to the speech, just as much as they have the right to listen to it, because of the very real fear of retaliation,” Abruzzo told Insider. .