Vice President, Labor Policy
April 27, 2022
Recently, the General Counsel at the National Labor Relations Board (NLRB) announced that representation petitions filed with the agency in the first six months of fiscal 2022 are up 57% from the same period last year. As she described it: “There is a surge in labor activity nationwide.”
Indeed there is. Petitions have been filed in all 50 states. This is a coast-to-coast phenomena with large numbers of petitions filed in places like California, New York, Pennsylvania, Illinois, Oregon, Washington, Michigan, Maryland, Massachusetts, and Ohio. Petitions have been filed against businesses large and small ranging from bargaining units of just one worker up to more than 5,000 workers. Small businesses are particularly impacted with more than 500 petitions (80% of those filed) covering worksites with 50 employees or less. Many different industries have also been targeted, including hospitals and health care, retail, transportation, logistics, security, manufacturing, janitorial services, communications, and higher education.
Workers have a right under the National Labor Relations Act (NLRA) to form a union if they so choose. Unfortunately the NLRB’s General Counsel isn’t satisfied with these numbers and wants to speed up the process in contravention of the law.
When workers decide on a union, they typically do so by secret ballot, where their privacy is respected and no one knows how they vote. The General Counsel, however, wants to mandate a “card check” process, under which union organizers publicly solicit workers to sign a card indicating their choice for or against a union. Card checks can subject workers to coercion or harassment to get them sign up.
The NLRA does not require employers to recognize a union based on signature cards. To get around the statute, the General Counsel seeks to revive a long-discredited case known as Joy Silk. Under this Joy Silk doctrine, if an employer refused to recognize a union based solely on signature cards, the NLRB could seek an order forcing the business to the bargaining table without any secret ballot election. This would allow unions to organize workplaces faster and easier, but would also short-circuit the protections of the NLRA.
However, there’s a big problem with the General Counsel’s proposal. Decades of NLRB precedent, decisions in the courts, and the very text of the NLRA reach the opposite conclusion.
Read the U.S. Chamber’s new report to find out what the law actually requires and how it protects a fair process for workers and employers.