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Workers Are About To Get Way More Power

How an NLRB rule could change the landscape of U.S. labor

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The National Labor Relations Board is expected to soon issue a major legal decision that would give workers a significantly stronger voice in the workplace. That decision, which could re-establish a policy called the Joy Silk doctrine, could make it considerably easier for workers to organize for better pay and benefits.

The decision comes at a key moment for the U.S. labor movement. Public support for unions is at its highest level in more than 50 years. We’re witnessing an extraordinary wave of unionization efforts at Starbucks, Amazon, Trader Joe’s, REI, Chipotle, Apple retail stores, and many other places.

How Corporations Get Away With Breaking Labor Law

Yet this enthusiasm for unionizing has ben met by a powerful flood of union-busting. Starbucks, Amazon, and many other companies have mounted high-pressure campaigns that aim to stifle workers’ voices and prevent democracy in the workplace.

These union-busting campaigns are meant to scare workers about unions and pressure them to vote against unionizing. To beat back unions, corporate executives and their high-paid consultants often use egregious, hardball tactics, like firing pro-union workers, herding workers into anti-union propaganda meetings, and warning workers that their workplace might shut down if they vote to unionize.

As Steven Greenhouse explains in his book Beaten Down, Worked Up: The Past, Present, and Future of American Labor, when companies fight against unionization, they often violate federal labor law. For example, Starbucks has fired over 100 pro-union employees — even though it’s illegal for an employer to fire a worker for supporting a union. One study found that employers fire nearly 1 in 5 rank-and-file workers who lead unionization drives.

Many corporations believe that they have a green light to engage in rampant anti-union illegalities because federal labor law doesn’t allow for employers to be fined for illegally firing pro-union workers or for other labor law violations.

That Could Be About To Change

In an interview with More Perfect Union last year, NLRB General Counsel Abruzzo said her consistent observation over two decades at the NLRB was that employers engage in illegal union-busting during the “critical period” between when employees petition for a union election and when the election is conducted. “They want time to coerce and intimidate workers to not vote for the union,” she said. “We should not be allowing our processes to be abused in that way.”

Abruzzo has called for the NLRB to adopt a former labor board policy that is called the Joy Silk doctrine. 

The name “Joy Silk” comes from a 1949 case in which the National Labor Relations Board ruled that when a union presents authorization cards signed by a majority of a workplace’s employees, the employer must recognize and bargain with the union unless the employer shows it has a “good faith doubt” about the legitimacy of the union’s majority status. 

Under Joy Silk, if a company refused to bargain when it didn’t have a good faith doubt about a union’s majority status, the NLRB would order the company to recognize and begin collective bargaining with the union.

Over the years, the NLRB and federal courts have moved away from Joy Silk. As a result, unionizing by card check — which is often called majority sign-up — is much rarer because employers now routinely refuse to recognize card checks. They no longer need any reason for rejecting card check; they need not show any good faith doubt. Instead, employers can insist on having workers vote in a secret-ballot election about whether they want a union, a move that usually gives employers weeks or months to mount a vigorous anti-union campaign and prevent a truly free choice by workers.  

Right now, what millions of workers want is to unionize and collectively bargain with their employers. Workers don’t want to face a gauntlet of firings and other tactics meant to intimidate them, frighten them, and undermine their free choice.

Restoring Joy Silk would make it far easier for workers who want a union to get one.

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