Biden’s NLRB bows down to Big Labor

The National Labor Relations Act, as amended by the Taft-Hartley Act, advanced workers’ rights by protecting, in equal measure, the right of an employee to join or refrain from joining a labor organization.

But under the Biden administration, the National Labor Relations Board (NLRB), the agency charged with that law’s enforcement, has abdicated its responsibility to serve as an impartial arbiter. It has opted instead to undermine workers by adopting a posture of servitude to labor unions and their special interests.

For decades, Democrats have agitated for the abolition of secret-ballot elections on union representation. They wish to replace it with “card check,” a method by which a union is recognized if a majority of employees in a bargaining unit sign authorization forms, often under the direct observation of union agents.

The flaws inherent in card check are obvious: By eliminating the need for representation elections, employers are constrained from presenting their views against unionization, thereby relieving union agents of a corresponding obligation to persuade their fellow workers of the merits of their cause. By stripping workers of their democratic right to make a decision in private, free from duress or coercion, card check is an affront to free association and workplace democracy.

Like Prometheus, however, card check seems fated to be revived again and again, first in the Orwellian-named Employee Free Choice Act, then in the failed Protecting the Right to Organize Act. 

Since her confirmation, NLRB General Counsel Jennifer Abruzzo has sought to revive card check by resurrecting an antiquated standard for issuing bargaining orders that had been abandoned for decades, known as the Joy Silk doctrine. Named after a 1950 D.C. Circuit case, Joy Silk required an employer to demonstrate a “good faith doubt” in order to dispute a union’s majority status.

By 1969, the Board had conceded the doctrine was unworkable. In a unanimous opinion in NLRB v. Gissel Packaging Co., the Warren Court (by no means a bastion of reactionary conservatism) formally discarded the Joy Silk doctrine, and in a subsequent case clarified that unions seeking to organize workplaces have the burden of invoking the board’s election procedures when recognition is refused.

But the partisan Democratic majority on the NLRB was not to be trammeled by binding Supreme Court authority. In a case known as Cemex Construction Materials Pacific, they discarded decades of precedent by holding that an employer must recognize a union when confronted with signed authorization cards, or else petition the board for an election. Any alleged unfair labor practice by the employer in the election’s run-up would then result in dismissal of the election petition and automatic union recognition.

In his dissent, Member Marvin Kaplan warned that by forcing employers to recognize union authorization cards often signed under duress, the Board ironically circumscribed workers’ democratic rights by depriving employees of true freedom to choose or decline union affiliation. What’s more, the NLRB might as well have just fired a starting gun for unions to file an endless litany of meritless complaints to ensure automatic recognition.

Not content to undermine workplace democracy, Abruzzo has stated that employer free speech is next on the chopping block. As one of many seminal reforms, the Taft-Hartley Act granted employers the right to express opinions on unionization, so long as said views do not contain bribery or threats of intimidation. NLRB precedent has enshrined an employer’s right to impart views in compelled meetings ever since the 1948 decision in Babcock and Wilcox.

This precedent was in accord with Taft-Hartley’s legislative purpose, as expressed by Sen. Robert Taft (R-Ohio) in congressional debate, of leveling a playing field that had tilted far too heavily to unions by “guarantee[ing] to employers as well as unions the right of free speech.”  

But neither this nor the plain language of the statute is deterring Abruzzo. Nor does the Supreme Court’s clear precedent that “an employer’s free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or Board.”

Under Abruzzo, the Office of General Counsel has cited Amazon CEO Andy Jassy merely for expressing the accurate observation that unions, by adding an extra layer of bureaucracy and impeding direct connections with managers, may result in less worker empowerment.

Abruzzo’s ambition to silence employers extended even to labeling an employer’s mere distribution of informational flyers “unlawful surveillance.” Such blatant overreach caused even the liberal D.C. Circuit to remind the NLRB that, absent threats, an employer’s neutral distribution of leaflets constitutes protected free speech. The D.C Circuit warned that Abruzzo’s position, if adopted, would curtail “uninhibited, robust, and wide-open debate in labor disputes.” 

Supplication to unions has overtaken not only the NLRB, but Democrats on Capitol Hill as well. In a letter, over 100 members of the House Democratic Conference attempted to straitjacket Delta Air Lines into silence by imposing a so-called “neutrality agreement,” which would prevent Delta from taking a public position on whether its employees should unionize. A similar letter was sent to automakers by key Senate Democrats. “Neutrality agreements” actually do the opposite of what the name suggests, giving unions the sole right to coordinate pressure campaigns before representation elections. 

Earlier this year, an Inspector General investigation concluded that NLRB employees under Abruzzo’s authority had improperly coordinated with union agents to give unions an advantage in representation elections. As a result, the outcome of a representation election in a Starbucks location had to be set aside. Apparently, if representation elections are not to be circumvented via card check, their neutrality can instead be undermined through fraud.

Despite the NLRB’s current prostration to labor unions, the private sector’s record-low union participation rates have remained unaltered. Even the Teamsters Union’s organizers, no strangers to getting their way through intimidation, recently voted against unionizing themselves.

With the private sector union participation rate remaining stubbornly low at 6.9 percent, Abruzzo and NLRB Chair Lauren McFerran would do well to contemplate whether the board’s reputation as an impartial adjudicator is worth compromising on behalf of union special interests.

Matthey F. Mimnaugh is a former chief counsel to Commissioner Keith Sonderling of the Equal Employment Opportunity Commission and labor counsel to Sens. Richard Burr (R-N.C.) and William Cassidy (R-La.).