When Amazon workers in New York City tried to unionize their warehouse, they began facing intense pressure from the company. Amazon representatives promised to fix employer grievances, as long as they did not support the union. Workers were also told they couldn’t share union literature without Amazon’s permission, and that it would be “futile” to unionize, because—according to reporting from Motherboard at the time—the union organizers were “thugs.” Amazon workers in Bessemer, Alabama faced their own union-busting tactics ahead of their historic election there.
Technically, these kinds of union-busting behaviors are illegal, but labor experts say there’s barely any teeth to the current labor laws that would actually prevent companies from taking these actions (in the Bessemer case, the National Labor Relations Board did find that Amazon violated labor law when it arranged for a mailbox to be installed in its parking lot; for that grievance, the workers there get to re-do their union election, but it also gives the company more time to put up anti-union literature or try to intimidate workers).
Amazon isn’t alone: In campaigns where unions are trying to form in a workplace, one study found that U.S. employers violate the law 41.5% of the time. All those violations, from firing employees for union activity to surveilling and harassing workers, make it harder for workers to unionize. But a change to labor law might soon be coming that could not only make it easier for workers to unionize, but have far-reaching impacts on the labor movement and our entire economy.
Under the current law, when workers want to form a union, there are two paths: If a majority of employees sign cards saying they want a union, their employer can choose to voluntarily recognize the union. After that decision, the company and the union begin the contract bargaining process. What happens more often, though, is the company demands a union election run by the National Labor Relations Board (NLRB). If a majority of employees vote “yes,” then the union is certified.
The time between when workers file a petition to unionize and when the election is actually held can leave a lot of room for employers to fight the union effort. Sometimes, they try to coerce them into voting against. Some tactics–like so-called captive audience meetings, in which employers use company time to force employees to listen to arguments against joining the union—are legal; others, like firing the workers who started the effort to unionize, are not, but can happen anyway. The penalties under the current law are “so weak,” says David Madland, senior fellow at the Center for American Progress, that they don’t actually discourage that behavior. “[The penalties are] typically just to post a notice that they violated the law, that employers sort of jokingly refer to as their ‘hunting licenses.'”
Jennifer Abruzzo, the current general counsel of the NLRB, wants to change that. In an interview with More Perfect Union, she laid out her plan to grow union membership, and end that sort of employer intimidation. One effort would be to ban captive audience meetings, but a bigger, key component to her plan is to reinstate something called the Joy Silk doctrine, which would make it more common for workers to form a union without an election—making voluntary recognition essentially the default, unless the employer has good reason to believe a majority of its do not workers want a union—and would provide stronger disincentives for employers to break the law.
Joy Silk, which came from a 1949 labor board ruling between Joy Silk Mills and the United Textile Workers of America, was recognized by the labor board for 20 years before it was replaced current standard (called the Gissel bargaining orders, after a 1969 Supreme Court case). The doctrine says that if a union provides evidence that a majority of workers want to unionize and bargain, and the employer has “no good faith doubt” that the union truly does have a majority of support among its workers, then the default position should be voluntarily recognition—no election needed.
If the employer doesn’t choose to recognize the union and ends up violating the law during the election process, the the labor board could then order the company to recognize and bargain with the union, skipping the election entirely.
“The presumption [under Joy Silk] is if there’s an unfair labor practice, meaning the employer broke the law, then it is presumed that the workers wanted to join a union,” Madland says. The employer has to have good faith doubt—like if the employer got “competing claims of majority status from multiple unions” or had reason to question how legitimate a union’s credentials were—for not voluntarily recognizing the union, and thus for not thinking a majority of workers wanted to unionize. If the company then violates the law in trying to coerce workers into not unionizing, that indicates they didn’t have a “good faith reason” for not believing a majority of workers wanted to unionize. If they did, they wouldn’t have had to break the law.
Reinstating Joy Silk could make it easier for workers to join a union, and would make the penalties for employers violating labor law more significant than they are today. Instead of just posting a notice that they violated the law, employers would be forced to start bargaining with the union.
“This could be a really big deal, because workers now are clamoring to join unions and take action in ways we haven’t seen in some time,” Madland says. “If the NLRB makes some changes to provide real remedies in the law, I think you could see a significant amount more workers being successful in their efforts to join unions.”
Today, only 6% of private sector workers are union members. At the same time, 68% of Americans approve of labor unions. If workers could more easily join a union, the impact on the workforce, and the entire economy, could be substantial. “It would be a big deal for all of society, because we would see wage increases, we would see economic inequality decrease, we would see racial and gender pay gaps close, and we would even see greater economic mobility,” he says. “There’s a lot of good that could come from a seemingly small, sort of technical decision here.”
Abruzzo’s effort to revive Joy Silk—happening during an ongoing lawsuit by the government alleging that a company called Cemex Construction Materials Pacific LLC interfered with Teamsters union campaigns in 2018 and 2019—is just one way the Biden administration and federal agencies like the NLRB can make it easier for workers to join a union. President Biden also recently announced a task force to boost organizing in the federal government, and there’s “dozens” of other steps officials can take, Madland adds—but Joy Silk is one that could easily have an enormous impact.
If an employer behaves legally, Joy Silk wouldn’t really change anything, Madland says, “but if employers are violating the law, the Joy Silk standard is a big deal.” And Madland is optimistic things will change to make it easier for workers to unionize. “I think this is in some ways a best-of-times, worst-of-times moment for labor,” he says. With private sector union density at just 6%, it’s the lowest it’s ever been. “It’s a real low point, but the potential is quite high for a renewed labor movement.”
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