Biden's top labor lawyer is pushing for a change that could make it easier for workers to join a union — and achieve one of the movement's biggest goals

insider@insider.com (Juliana Kaplan) - 

© NLRBJennifer Abruzzo, general counsel for the NLRB. NLRB

Right now, employers can choose to recognize a union their workers form, or workers have to go to a vote.
Jennifer Abruzzo, general counsel for the National Labor Relations Board, wants to change that.
Abruzzo wants to reinstate an old doctrine for union formation, which would be a seismic shift for the movement.

In December 2021, Amazon workers at a Staten Island warehouse asked the tech and retail giant to voluntarily recognize their union so they could begin bargaining right away.

Instead, workers didn't get to vote on their union until more than three months later, ultimately becoming the first warehouse to unionize under the Amazon Labor Union.

The process took so long because, under current law, when workers say that they've formed a union, companies can choose to voluntarily recognize them and start bargaining immediately — but they often don't.

The other option — which has been happening at big names like Starbucks, Amazon, and the New York Times — is having workers go to a secret ballot election.

Both of those processes might change if Jennifer Abruzzo, the Biden administration's general counsel for the NLRB, has her way. The former counsel for the Communication Workers of America, Abruzzo wants to revive a more than 50-year-old process called the Joy Silk doctrine.

Named for Joy Silk Mills, this process can let workers show they want a union by having a majority of union authorization cards signed — what's called card check — instead of a formal voting process. Unless the employer has a "good faith" doubt that it's a true majority, they must begin bargaining with the union. Abruzzo filed a brief in April to the NLRB board saying that Joy Silk should be reinstated.

"Joy Silk is logically superior to current Board law's ability to deter election interference," Abruzzo wrote in her brief. "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."

After Joy Silk was replaced, Abruzzo wrote, unfair labor practices "increased dramatically," and, "in turn, the number of elections fell precipitously and, as a result, the rate of unionization now rests near all-time lows."

It's a move that's already won support from labor leaders. "Reinstating Joy Silk in its original form would stop employers from playing games and refusing to recognize a union when workers have unquestionable proof of majority support & would deter employers from unlawfully interfering in organizing campaigns," Liz Shuler, the president of the AFL-CIO, the country's largest labor federation, wrote in a tweet.

But Glenn Spencer, senior vice president for employment policy at the right-leaning US Chamber of Commerce, said that "there's a number of reasons why the board abandoned the process," and that the card check process is "inherently unreliable," because there's a whole assortment of reasons that people sign union cards.

"The simple fact is that Congress has repeatedly rejected efforts to make card check the preferred process," Spencer said.

If Joy Silk was reinstated, it would mark a seismic shift in union organizing and how quickly a group of workers can begin bargaining a contract.

Elections can be a drawn out process, and they've gotten longer, as Bloomberg's Ian Kullgren reported in 2021. In 2020, according to Bloomberg's calculations, the median time between filing for an election and the actual voting was 31 days. From 2016 to 2019, it took a median of 24 days. Some of that may have been due to Trump's NLRB board enacting new rules that could lengthen and complicate the time of elections.

Employers also frequently employ anti-union tactics during elections: A 2009 paper from the left-leaning Economic Policy Institute found that 96% of employers "mounted a campaign against the union" during an election. In cases where employers did mount an anti-union campaign, workers won just 48% of elections — compared to 72% of elections won when there was no campaign.

Currently, employers can make anti-union meetings, called captive audiences, mandatory. That's also something Abruzzo wants to change, urging the board to find mandatory meetings unlawful.

"Workers don't feel that they can leave, even though they have the right to refrain from listening to speech, just as much as they have the right to listen to it, because of the very real fear of retaliation," Abruzzo told Insider.