Biden's NLRB counsel rewriting labor law history

[Editor's note: This story originally was published by Real Clear Policy.]

By Stan Greer
Real Clear Policy

Very soon after being confirmed in a razor-tight U.S. Senate vote last year as general counsel for the powerful National Labor Relations Board (NLRB), Jennifer Abruzzo, formerly a lawyer for the radical Communications Workers of America union, made her agenda plain to all.

Clearly acting on the wishes of the man who nominated her for the job of NLRB general counsel, Big Labor President Joe Biden, Abruzzo broadcast her intention to wield the power of her office to help union officials grab monopoly-bargaining power over millions of additional workers.

Since then, a key part of Abruzzo’s  program to assist union organizers has been the imposition of fines and other penalties on employers simply because they insist their employees get a chance to vote in a secret-ballot election before they are subjected to monopoly union control. And she claims the current rabidly pro-union monopoly NLRB majority consisting of member Lauren McFerran, elevated to the chairmanship by Biden, and two Biden appointees can make this radical policy change by bureaucratic fiat, with no input from Congress.

To justify her extraordinary stance, Abruzzo and her staff grossly distort what the amended National Labor Relations Act (NLRA) says and how it has been implemented over the years.

The fact is, when bipartisan majorities in Congress adopted a set of NLRA amendments in 1947, one of their key avowed purposes was to curtail “card check” abuses. Prior to the approval of the Taft-Hartley amendments, Big Labor bosses would often present to employers pro-union cards purportedly signed by a majority of their workers and demand to be granted monopoly-bargaining privileges over those employees based on those cards alone, without a vote.

Recognizing that many employees signed so-called “union authorization” cards only after being “cajoled, coerced and intimidated,” and in some cases “beaten up,” by Big Labor agents, Congress sought to prevent monopoly-bargaining regimes from being installed when a majority of workers didn’t want one.

During the floor debate over the Taft-Hartley amendments, lead Senate sponsor Robert Taft (R-Ohio) vividly summed up Congress’s motivation in permitting an employer to petition for a secret-ballot election whenever any union official demanded to be given monopoly-bargaining power via a “card check”:

Today an employer is faced with this situation. A man comes into his office and says, “I represent your employees. Sign this agreement, or we strike tomorrow.” The employer has no way to determine whether this man really does represent his employees or not. The bill gives him a right to go to the [NLRB] and say, “I want to know who is the bargaining agent for my employees.”

Unfortunately, over the 75 years since Taft-Hartley was enacted, NLRB bureaucrats have time and again sought to limit the secret-ballot protections for employees and employers furnished in  subparagraph (B) to Section 9(C) of the NLRA as amended. Nevertheless, throughout all those years, employers who wished for their employees to get a secret-ballot vote prior to the employees’ being corralled into a union have generally succeeded.

The amended NLRA plainly states that, the NLRB “shall direct an election by secret ballot and shall certify the results thereof” if the agency finds that there is “reasonable cause” to doubt union bosses card-based claims of majority support. Such fact-finding can include an investigation or hearing.

But Abruzzo is determined to eliminate even this modest protection for employees and business owners who prefer to remain union-free. She wants to force employers who resist “card check” unionization of their employees to jump through onerous procedural hoops before their employees get a chance to vote in private. To justify her insistence that employers acquiesce to “card checks” unless they have smoking-gun evidence of forged signatures or other flat-out fraud, Abruzzo falsely claims this was the NLRB’s rule for years prior to the U.S. Supreme Court’s 1969 Gissel decision.

This April 11, Abruzzo’s office filed a brief calling on the five-member NLRB to routinize forcing employers to recognize a union as the monopoly-bargaining agent of all front-line employees if 50% plus one of them signed union cards. In Cemex Construction Materials Pacific, Abruzzo and her subordinates have insisted there is nothing wrong with forcing employers to “prove” union bosses have violated the law before their employees can get an opportunity to vote. According to Abruzzo et. al., employers had to do this for at least a decade and a half starting with the NLRB’s 1949 Joy Silk ruling.

The fact is, Joy Silk itself nowhere indicated that employers were under an obligation to “prove” their “good faith” when requesting a secret-ballot election to verify a union’s majority status. Joy Silk referred only to certain illegal actions from which employers had to refrain in order to be eligible to protect their employees’ rights through invocation of Section 9(C), subparagraph (B) of the NLRA.

In the wake of Joy Silk¸ when NLRB bureaucrats did try repeatedly in cases such as Hannaford Bros. Co.,  Flomatic Corp., and S.S. Logan Packing Co. to interpret Joy Silk’s “good faith” requirement far more expansively so as to enable union bosses to acquire monopoly-bargaining privileges with no election almost as a matter of course, federal courts overturned the Board again and again. It was only after being chastened repeatedly in the courts that the NLRB decided, in the 1965 John P. Serpa and 1966 Aaron Brothers cases, to acknowledge bluntly that employers were not obliged, to get an election, to “prove” they were acting in good faith. Rather, elections could be bypassed only if NLRB lawyers furnished clear evidence that employers were not acting in good faith.

During the Gissel arguments, NLRB attorney Dominick Manoli, citing the Aaron Brothers precedent, stated again and again that, under then-current law, employers who had not committed “serious” unfair labor practices could insist on an election based solely on their belief that cards are not a reliable gauge of employee views.

Al Gore (not either of the two Tennessee senators with that name), the union attorney who offered arguments immediately afterwards, did not disagree at all with Manoli about this fundamental point. Gore’s sole significant difference with Manoli was the former’s insistence that employers who wished to protect their employees’ right to a secret-ballot election without being charged with unfair labor practices could only do so by petitioning the NLRB for an election, as provided for under the Taft-Hartley amendments to the NLRA. For his part, Manoli claimed employers could licitly insist that a union wishing to become their employees’ monopoly-bargaining agent would have to file for an election itself.

Contrary to the claims of Abruzzo and Co., Manoli’s argument was completely consistent with Aaron Brothers: As Manoli said, an employer’s rejection of a union “card-check” recognition demand is in itself “bad-faith” only when the employer “knows independently of the cards . . . [that] the  majority of employees have designated that union.” That is why Gore did not challenge Manoli on that point. In the end, the Court decided that the only important difference between Gore and Manoli did not need to be settled to decide Gissel. It took another five years for the Court to find, in Linden Lumber, that employers did not need to file for elections themselves to establish their “good faith” in rejecting union recognition via a “card check.”

A short review of the text and legislative history of the Taft-Hartley Act, NLRB decisions that addressed monopoly-bargaining orders from Joy Silk to Gissel, and how those decisions fared when challenged in federal court suffices to show that the stance taken by Abruzzo and her subordinates in the Cemex case is cynical and ahistorical, as well as anti-worker.

The current NLRB chairman, placed in that job by Joe Biden, and the two other NLRB members appointed by him might be expected to be inclined, if possible, to furnish Abruzzo with the three votes she needs on the five-member Board to overturn Gissel and make an employer’s resistance to unionization by “card check” an unfair labor practice, unless the employer can prove his or her innocence. But the fact is that the NLRB Office of the General Counsel has furnished the NLRB with no sound legal or policy reasons for scrapping Gissel.

Any future NLRB decision announcing that the agency is revising its approach to “card checks” in accord with the recommendations of the Abruzzo Cemex brief would be nakedly political.

Stan Greer is a senior research associate at the National Institute for Labor Relations Research.

[Editor's note: This story originally was published by Real Clear Policy.]

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