May 2, 2022

Return to Old Organizing Approach Would Undermine Congress and Case Law

The U.S. Chamber of Commerce has published a 27-page report debunking the new legal theory that states existing labor law already allows for union recognition through the controversial card check process.

The issue reemerged in April when Jennifer Abruzzo, general counsel for the National Labor Relations Board, filed a brief asking the NLRB to revive the Joy Silk doctrine, which allows unions to form through the card check method as long as the employer does not have reason to doubt that the presented cards represent a majority of employees. Card check differs from a secret ballot in that employees are not asked to vote in a federally supervised election, rather they sign authorization forms signaling their support for a union. The process has been criticized because it removes the ability for employees to keep their vote private and can increase the likelihood of coercion and intimidation about whether they should organize.

The Joy Silk doctrine dates back to a 1949 legal case and was later supplanted by the 1969 Supreme Court decision in NLRB v. Gissel Packing Co., a case where the employer refused to bargain with a union on the grounds that the card check process was inherently unreliable for determining whether a majority of employees wanted a union. In her brief, Abruzzo argued that the Gissel decision did not actually overturn Joy Silk, rather the Supreme Court erroneously determined that the NLRB’s current practice had changed from the doctrine to one where employers were not obligated to accept a card check as proof of the majority’s desire to unionize. As such, the NLRB could choose to reinstate the old standard for card check union organizing.

However, the U.S. Chamber’s report details several reasons supported by case law why the NLRB could not take such action unilaterally. The Gissel decision, the U.S. Chamber notes, allows for NLRB bargain without an election only when there was proof of “outrageous,” “pervasive” or other unlawful conduct that seriously impeded having a fair election. Further, it recalled the 1975 decision in Linden Lumber v. NLRB in which the Supreme Court held that unless the employer engaged in an unfair labor practice that impaired the electoral process, it was not obligated to accept a card check as proof of majority status.

The report also indicates that trying to enact card check organizing through agency policy would undermine Congress, which has never explicitly passed a law requiring union recognition based on signed authorization cards. The Wagner Act, which established the NLRB and the basic rights for union organizing in 1935, allows the agency to certify a union based on “a secret ballot of employees or any other suitable method.” However, the Taft-Hartley Act of 1947 eliminated the phrase “any other suitable method,” leaving secret ballots as the only Congressionally authorized way to organize.

Since 1947, labor advocates and legislators have tried several times to introduce mandatory card check union authorization and each time the proposed laws have failed to gain passage, most recently when the PRO Act stalled in the Senate in 2021.

“Congress has repeatedly rejected efforts to impose card check and the general counsel cannot do so outside of the legislative process,” said Glenn Spencer, senior vice president for employment policy at the U.S. Chamber. “We will oppose this action with every tool at our disposal, including litigation if needed.”