NLRB lawyer wants card check as left-wing worker selection fails
In 2021, we conducted a survey on “Core Labor Policy Issues”. In the year since the release, the Biden administration and Big Labor have lobbied his interests, with major developments on these core issues. Today we look at issues raised in ‘Every Job is a Factory Job’ and ‘Independent Contracts’, which cover ‘legal efforts to drive workers out of industries unions have struggled to organize into unions “.
Card check increases
In our previous article, we noted union strategies for adapting its mid-20th century “big three” model (the big three being big labor, big government and big business) to contemporary labor relations by modifying the definitions of “employment” and “independent contracts”. These approaches seemed to point to the political weakness of Big Labour’s “check the cards” advocacy, which would replace secret ballot votes on union organizing with public solicitations and signatures.
Unfortunately, this analysis was apparently too optimistic. Jennifer Abruzzo—the Appointed by the Biden administration Advocate General (essentially Chief Prosecutor) of the National Labor Relations Commission (NLRB) who previously worked as a lawyer for the Left Party Communications Workers of America union – proposes to enact control of the cards by decision of the NLRB by reviving a long-dead precedent called the “Joy Silk doctrine”. Lawyers with the Proskauer law firm explain what this precedent implied:
According to this old standard, the burden of proof is on the employer to demonstrate that it has a “good faith doubt” as to the union’s majority status when the union presents proof of an absolute majority and the employer refuses to recognize the union. If the employer was unable to meet this “doubt in good faith” test, the Board ordered the employer to recognize and bargain with the union without an election by secret ballot.
Secret ballot elections give employers the opportunity to present employees with arguments against unionization and allow employees to make their decisions away from the scrutiny of union organizers and colleagues in the cancel culture. Reviving the Joy Silk doctrine would make it nearly impossible for employers to present an argument against unionization to employees and give a decisive advantage to union organizers, whose campaign promises are not binding.
While unions win most organizing elections where voting takes place, they do not win all of them. This is basically why Big Labor wants to replace secret ballot votes with card control. With Congress’ path to mandatory card verification closed for now, Big Labor allies in government are looking to the NLRB to get their preferences into policy. Even the stalled PRO law only pushed card verification stealthily, rather than the full adoption proposed in the Obama-era Employee Free Choice Act.
An old enemy falls
When it comes to freelance contracts and joint employment, there was better news. President Biden had appointed David Weil, administrator of the wage and hour division of the Obama administration’s Department of Labor, to take over his former position. Weil is a fierce critic freelance contracts and promised tough regulatory action against what he called “the cracked workplace” in a 2014 book. But despite a Democratic majority in the Senate overwhelmingly loyal to Big Labour, Weil saw his nomination defeated in of a test vote, with Arizona Democrats Kyrsten Sinema and Mark Kelly and West Virginia Democrat Joe Manchin voting with all Republicans against. While Weil’s defeat is unlikely to freeze Biden’s pro-union, anti-contract Labor Department agenda, it will keep a true believer away from a key political seat for at least a while.
Change of strategies
These political moves come amid high-profile and exceptionally successful organizing campaigns targeting big business. After a decade of multimillion-dollar SEIU media campaigns targeting McDonald’s, the union had organized few or no stores. But the Workers United division of the SEIU has already makes inroads targeting Starbucks in an old-fashioned, store-by-store union campaign, winning union elections at several stores. The Amazon Labor Union did the same by organizing at the store level against Amazon, although its second election in Staten Island was a defeat for the union.
Competitive Enterprise Institute Labor Policy Analyst Sean Higgins writes:
Thus, moving to a smaller scale organization seems to be an acknowledgment that the all or nothing approach is not feasible. Instead, unions are simply trying to pick up a few victories, no matter how small, and hoping they can build on them. It’s not a bad strategy for them.
Clearly, as the example of the card check shows, the unions’ many bad ideas for remaking the American workplace and economy are not dead. Indeed, they moved to the House of Representatives last year and still sit before the Senate. But for now, the unions are operating according to the system as it is, and not according to the system as they would like.