Amicus brief in Starbucks case says NLRB General Counsel’s plan will expose workers to coercive union tactics and contradicts SCOTUS precedent
Washington, DC (March 16, 2023) – The National Right to Work Legal Defense Foundation has just submitted an amicus brief at the National Labor Relations Board (NLRB) in a case involving SEIU union organizers’ attempt to impose unionization on workers at Starbucks without a secret ballot vote. The Foundation’s brief, attached to the motion, defends workers at Starbucks and workplaces nationwide from Biden-appointed NLRB General Counsel Jennifer Abruzzo’s attempt to effectively mandate coercive “card check” organizing campaigns.
In card check campaigns, professional union organizers can pressure workers into signing cards that are then used at “votes” for unionization in lieu of an NLRB-supervised secret ballot vote.
In the ongoing Starbucks case, former union lawyer Abruzzo is attempting to resurrect the long-discredited Joy Silk NLRB theory, which would force union monopoly control on workers who have not had an opportunity to vote in secret on whether they want a union in the workplace. SEIU officials attempted to impose union control on Starbucks baristas using the so-called “card check” process, in which union agents can bypass the traditional secret ballot method of gaining power in a workplace and can obtain union “authorization cards” directly from workers – often using coercive or misleading tactics.
Card check schemes are recognized by court and NLRB precedents and even AFL-CIO organizing handbooks as inaccurate gauges of true employee support for union control. Despite this, the Joy Silk theory that NLRB General Counsel Abruzzo seeks to revive forbids employers from challenging the results of a card check unionization.
Employers can contest the results of a card check by asking the NLRB to conduct a secret ballot union vote among the employees. Conversely, under Joy Silk, the NLRB has the power to force both workers and employers under union control if an employer objects to the results of a card check.
“Now, the General Counsel seeks to upend five decades of settled law to resurrect Joy Silk,” says the amicus brief. “She seeks a regime of instant unionization through compulsory bargaining orders issued to any employer that refuses to recognize a union based on authorization cards, even though such cards were most assuredly not collected through ‘laboratory conditions.’”
Joy Silk Prioritizes Union Power Over Employees’ Will and Conflicts with Court Precedent
The Foundation’s brief argues that card check unionization drives are “notoriously unreliable” for determining whether a majority of employees in a workplace want a union. Because card check schemes lack NLRB oversight and do not permit employees to vote in private, the brief argues, the door is open for union agents to deploy many kinds of pressure tactics, including soliciting ballots, electioneering, keeping lists of employees who have or have not signed cards, and more.
As opposed to employees in a secret ballot election who vote quickly and privately, “[t]his is not true for an employee caught in the maw of a year-long card check campaign, who may be solicited repeatedly and, perhaps coercively, month after month until he or she signs,” the brief says. If General Counsel Abruzzo brings back Joy Silk, that would allow union bosses to “bypass secret ballot elections at will and secure a compulsory bargaining order virtually anytime they are able to collect a bare majority of authorization cards.”
The amicus brief also maintains that the Joy Silk standard is at odds with a large number of court precedents, including from the D.C. Circuit Court (where many NLRB decisions are appealed), other circuit courts, and the U.S. Supreme Court twice. All of these courts have declared at one time or another that “authorization cards are inferior to secret ballot elections,” the brief says.
General Counsel Abruzzo Seeks to Compel Workers into Union Ranks Despite More Than 90% of American Workers Rejecting Unionization
“NLRB General Counsel Abruzzo – a former CWA union official – continues to show her extremist views when it comes to overturning precedent in the pursuit of greater coercive powers for her former colleagues in Big Labor’s upper echelon,” commented National Right to Work Foundation President Mark Mix. “Inevitably, this comes at the expense of the rights of independent-minded American workers, who want the right to choose whether or not they wish to associate with a union, free from the well-documented coercive tactics union organizers deploy during card check drives.”
“Big Labor advocates previously at least understood that a sweeping change to federal labor law, like eliminating secret ballot elections to mandate ‘card check,’ would at least require an act of Congress,” Mix added. “But with the Card Check Forced Unionism Bill dying in 2010 due to bipartisan opposition, and the so-called ‘PRO-Act’ blocked in the last and current Congress, the Biden Administration is apparently moving forward to radically rewrite federal labor law by bureaucratic fiat.”
The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.
