Biden Administration Moves To Make Unionizing Easier With End to Workplace Election Rules

With efforts to form unions ticking up across the country, the Biden administration is seeking to change how union elections are held in ways that would make it more favorable to labor organizing.The general counsel of the National Labor Relations Board, Jennifer Abruzzo, is pushing to return to a process that would allow employees seeking to join a union to sign cards in support of the effort instead of voting by secret ballot. Advocates of the change argue that a return to “card check” would protect unionization efforts — currently under way at companies ranging from Amazon and Starbucks to Apple and Chipotle — from interference by management during the often-lengthy election process.Critics fear that eliminating the secret ballot could invite intimidation from union organizers and give a false impression of union support. The streamlining of the election process, which Politico said the board will vote on in the coming months, has the potential to swell union membership after decades of decline. In April, Ms. Abruzzo filed a brief advocating a return to the Labor Board’s “Joy Silk doctrine,” in which the board interpreted the National Labor Relations Act to allow a majority of employees in a workplace to present signed cards authorizing union representation in lieu of the current requirement for a formal election.Employers were bound to negotiate with unions formed via card check until 1969, when the board scrapped the doctrine.Since that reversal, employees have been required to petition for elections in order to form a union. They must obtain signatures from at least 30 percent of employees in order for the labor relations board to conduct an election, which then requires 50 percent support from the workplace.“Joy Silk is logically superior to current Board law’s ability to deter election interference,” Ms. Abruzzo wrote in a brief supporting the changes. “It directly disincentivizes an employer from engaging in unfair labor practices during organizing campaigns to avoid a bargaining obligation, as doing so will typically result in the imposition of a bargaining order.”A study by a pro-union think tank, the Economic Policy Institute, concluded that “aggressive employer opposition is a common feature of union election campaigns.” The researchers found that in 2016 and 2017, employers were charged with unfair labor practices that violated federal law in 41.5 percent of all union elections. The charges were most often for firing or otherwise retaliating against employees involved in union activity.The senior counsel for Ballard Spahr, Steven Suflas, who represents management in labor matters, told the Sun that reinstating card check could make it easier for labor leaders to coerce reluctant employees.“What has always been the employer’s concern … is that you don’t know what’s gone into the signing of the card,” Mr. Suflas said. “And I know for a fact, based on experience, that some people sign the cards just so they’ll be left alone.”He said that card checks, which are conducted to gauge election support, are often poor indicators of how an election will turn out.“These days, unions don’t even ask for elections unless they’ve got more than a majority of the cards signed — sometimes even a supermajority — and they still lose the election,” Mr. Suflas said. “That tells me that the flaw with card check recognition is that employees have only heard one side of the story.”Researchers at the Economic Policy Institute argue that elections — which last about a month on average — give employers time to hold mandatory anti-union meetings and to intimidate and fire union supporters.President Biden has pledged that he would lead “the most pro-union administration in history.”However, even with labor unions seemingly coming back into vogue, Mr. Suflas said he thinks the return to card check is “a pretty big stretch” for the 3-2 Democratic majority on Mr. Biden’s Board to take up. The past year has seen an uptick in union organizing. The Bureau of Labor Statistics reported that in fiscal year 2022, union petition filings were up 57 percent from the previous year.Apple store employees at Towson, Maryland, voted last week to form the company’s first union, and campaigns are also under way at stores in New York City and Atlanta. Chipotle employees at Augusta, Maine, also filed for an election last week.Since December, nearly 130 Starbucks locations have voted to unionize, with 211 more having petitioned to hold union elections. In April, Amazon’s JFK8 warehouse in Staten Island became the first to unionize, but a similar effort in Bessemer, Alabama, failed. This recent uptick, however, comes after a long dry spell for the labor movement. As of January 2022, only 6.1 percent of all private-sector employees were unionized, down from 20.1 percent in 1980.Ms. Abruzzo said that the end of card check was a major contributor to the decline. “After the board replaced Joy Silk, the commission of unfair labor practices during election campaigns … increased dramatically,” she said in her brief. “In turn, the number of elections fell precipitously, as a result, the rate of unionization now rests near all-time lows.”

Biden Administration Moves To Make Unionizing Easier With End to Workplace Election Rules

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