American Workers Are About To Get Way More Power. Here's How.

A vital piece of labor law, the Joy Silk doctrine, is expected to be reinstated by the NLRB.

Federal labor regulators may soon upend how unions are formed in America.

An impending NLRB ruling is expected to reinstate the so-called Joy Silk doctrine, which allows workers to form a union simply by collecting signed authorization cards from a majority of their bargaining unit rather than needing to participate in a formal election.

The new process, if implemented, will make organizing unions with coworkers far faster and simpler. It will also make union-busting much more difficult.

We partnered with award-winning former longtime New York Times labor reporter Steven Greenhouse to explain what’s happening. Watch or read more below.

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Workers Are About To Get Way More Power. Here's How.

By Steven Greenhouse

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. Let me explain:

As we know, public support for unions is very high — the highest level in more than 50 years. Indeed, we’ve witnessed an extraordinary wave of unionization efforts at Starbucks, Amazon, Trader Joe’s, REI, Chipotle, Apple retail stores, and many other places.

Unfortunately, this enthusiasm for unionizing has been 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 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 I explain in my book, Beaten Down, Worked Up: The Past, Present, and Future of American Labor, all too often when companies fight against unionization, they violate federal law. Although it’s illegal for an employer like Starbucks to fire a worker for supporting a union, Starbucks, for instance, has fired over 100 pro-union employees. One study found that employers fire nearly 1 in 5 rank-and-file workers who lead unionization drives. Many corporations believe they have a bright green light to engage in rampant anti-union illegalities because federal law doesn’t allow for employers to be fined — not even one cent — for illegally firing pro-union workers or for other labor law violations.

Jennifer Abruzzo, the general counsel of the National Labor Relations Board, is very upset about all the anti-union lawbreaking by employers, and about how that lawbreaking often helps beat back union drives. 

In an interview with More Perfect Union last year, 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.”

So she is pushing for a policy that would make it considerably easier for workers to unionize and to do so without having to face employers’ fierce, weeks-long, often illegal anti-union campaigns. 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. “The remedy would be, you are forced to recognize and bargain with this union,” Abruzzo told More Perfect 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.  

In a pending labor board case involving the major cement maker Cemex, General Counsel Abruzzo has asked the full five-person NLRB board in Washington to re-establish Joy Silk as official policy. In her brief in that case, Abruzzo wrote that the current system for determining whether workers want a union — with the flood of illegal firings and other employer violations — “has failed to deter unfair labor practices during union organizing drives and provide for free and fair elections.”   

Abruzzo wrote that after the labor board replaced Joy Silk with a system that allows employers to reject card check and insist on elections, “the commission of unfair labor practices during election campaigns, including unlawful discharges, increased dramatically. In turn, the number of elections fell precipitously and, as a result, the rate of unionization now rests near all-time lows.”

In the Cemex case currently before the labor board, the Teamsters union launched a campaign to organize ready-mix concrete truck drivers in Las Vegas and Southern California. The Teamsters presented the company with signed authorization cards from 207 of the unit’s 366 employees, nearly 57 percent of the workers. Instead of voluntarily recognizing the union, the employer (as so many corporations do nowadays) demanded an election vote and immediately engaged in illegal unfair labor practices with the aim of reducing worker support for the union.

An NLRB judge found that Cemex had illegally fired a union supporter, illegally spied on union activities, and illegally threatened to close operations, discharge workers and/or reduce workers’ benefits if they voted to unionize. Finally, after the employer engaged in its intense union-busting campaign, the drivers narrowly voted against unionizing, 166 to 179.

In a far-reaching study, Kate Bronenbrenner, a labor researcher at Cornell University, documented that heavy-handed union-busting tactics like the ones Cemex used are far too common. She found that 85% of employers force workers to attend mandatory captive audience meetings, 71% of employers have supervisors regularly talk with workers one-on-one about the union campaign, 45% threaten workers with plant closings, outsourcing or contracting out of their work, and 16% of employers fire union activists.

In her brief in the Cemex case, Abruzzo argued that if the labor board adopts the Joy Silk doctrine, it would greatly improve workers’ ability to organize. Under Joy Silk, she wrote, if an employer violates the law in fighting against unionization, that will demonstrate its lack of good faith in doubting the union’s majority. The Joy Silk doctrine would also create a much clearer and easier route for workers to unionize through card check. Ask any union leader or organizer and they’ll tell you it’s far easier, faster, and less expensive to unionize through card-check than through a union election when employers mount ferocious union-busting campaigns. 

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. Joy Silk would make it far easier for workers who want a union to get one. And doing so, allowing workers free choice and a stronger voice,  would help reignite America’s workers with a real sense of democratic values in our nation at a time when our democracy and our democratic values are under attack.