Big Labor's Covert Plan To Kill Union Elections

Union partisans in the Biden administration want to bypass Congress and enact controversial labor policies by dusting off rejected 1940s-era legal theories.

When union officials launch an organizing drive, their ultimate goal is to obtain exclusive monopoly bargaining status, a mandate from the federal government that an employer must bargain only with union officials over a contract covering all workers, even those opposed to unionization.

"Right-to-work" advocates have long opposed monopoly bargaining, and argue that unionization should be a voluntary decision for each worker. So far, Congress has rejected the vision of fully voluntary unionism. Federal labor law gives a monopoly over contract bargaining to unions that claim worker support, but what constitutes such support has always been a controversial political and legal question.

The Protecting the Right to Organize (PRO) Act could replace secret-ballot union elections—which operate just like political elections with private voting booths—with inferior "card check" drives, where union agents are permitted to solicit votes in person from workers by demanding they sign union cards. This move has support from President Joe Biden and virtually every major labor union. If they obtain cards from a majority, union officials get their government-enforced monopoly without facing an actual election.

Unsurprisingly, there are countless stories of coercion during card check drives, ranging from groups of union agents harassing workers in their homes and lies about the true purpose of a signature to threats of violence against those who won't sign. One health care worker even reported being told the union would "come and get her children" and "slash her tires" if she didn't sign a union card.

There was a time when the National Labor Relations Board (NLRB), the agency that enforces labor laws covering most private sector workers, would force employers to bargain with unions on the basis of such cards alone. In 1947, Sen. Robert Taft (R–Ohio) summarized the problem this created during debates over amendments to the National Labor Relations Act (NLRA):

"Today an employer is faced with this situation. A man comes into his office and says, 'I represent your employees. Sign this agreement, or we strike tomorrow.' Such instances have occurred all over the United States. The employer has no way in which to determine whether this man really does represent his employees or does not. This bill gives him the right to go to the Board under those circumstances, and say, 'I want an election. I want to know who is the bargaining agent for my employees.'"

The resulting Taft-Hartley amendments to the NLRA, celebrated for enshrining states' ability to pass "right-to-work" laws, also solidified an employer's right to demand a secret-ballot election to prove a union actually had majority support and hadn't just strong-armed workers into signing union cards.

But the NLRB immediately created a loophole. In the 1949 Joy Silk case, the NLRB ruled that employers must grant recognition to a union claiming a card check majority unless the employer had a "good faith" reason to doubt the card check signatures.

The problem is that card checks are an inherently unreliable way of determining who supports a union. For employees to vote no by not signing a union card, they must convince one or more professional union organizers to leave them alone. They must make their position public and risk being ostracized or harassed by pro-union colleagues. No employer operating in good faith should ever assume that union cards from 51 percent of his work force are an indication of a union's majority status.

In recognition of card check's deficiencies, and to square its policies with Taft-Hartley's recognition of an employer's right to request an election, the NLRB phased out the Joy Silk standard. First, it shifted the burden to the Board's general counsel to prove that an employer had demanded an election in bad faith. Then, after the Supreme Court's 1969 ruling in NLRB v. Gissel Packing, the Board began allowing employers to request elections except in cases of extreme proven employer misconduct. Later, in 1974, the Supreme Court in Linden Lumber v. NLRB explicitly affirmed the NLRB's practice of allowing employers to reject supposed card check majorities in favor of secret ballot elections.

Ever since, unions pushed aggressively for legislation that would let them obtain monopolies via card check over an employer's objection, but couldn't pass it, even with the Democratic supermajority in 2009. Jennifer Abruzzo, the former union lawyer Biden installed as the general counsel of the NLRB, now claims card checks can be implemented without Congress.

In a move that earned her praise in The New Republic as "one of the quiet heroes of the Biden administration," Abruzzo recommended that the NLRB restore the defunct Joy Silk doctrine and once again demand that employers prove the legitimacy of their card check doubts. She advances policies so controversial they couldn't pass through a one-party dominated Congress, and which blatantly violate the Taft-Hartley amendments to the NLRA.

Abruzzo's argument is based on the false premise that sometimes employers have no good reason to doubt a card check majority. They always do, because card check is inherently coercive.

Abruzzo claims that restoring the Joy Silk regime "is not a path to card check." Her defenders in the media point out that lots of elections still happened under Joy Silk, and that bringing back the "good faith" standard would keep employers in line by letting the Board threaten to take away their right to an election.

But allegations of employer misconduct are relatively easy to drum up. Under Joy Silk, such allegations can be used to automatically prove an employer's "bad faith," which essentially means that the Board's chief prosecutor (i.e., Abruzzo) can decide who gets an election and who doesn't.

Since union officials widely backed the PRO Act, which would universally mandate card check unionization, there's every reason to conclude that Abruzzo's real intention is to use Joy Silk as a means of subjecting workers to increased card check unionization that she knows lacks the support needed to win congressional approval.