By: Max Fattal ‘25
Introduction
Unions are good for workers, good for the country, and necessary to make the economy work for the middle and working class. At the same time, they’ve been completely eradicated out of many major U.S. sectors. Studies have shown that unions reduce income and wealth inequality for members and non-members alike. Therefore, it should be no surprise that as union membership has declined over the last 60s, income inequality has become substantially worse. This is no accident, and it's not for lack of support; unions are failing despite a rising approval rating well above 70%. It is a result of a concerted and consistent push against unionization on multiple fronts that has succeeded in preventing millions from joining unions and millions more from reaping the benefits. This paper attempts to examine why unionization has staggered through an examination of its laws. First, it looks at the history of union litigation and NLRB jurisprudence. Next, it examines contemporary union law, how its limitations allow for busting and how its enforcement fails to discourage violations. Finally, it examines solutions, both in reversions to past policies and through evolutions into new territory.
History
NLRA Erosion
Section 7 of the National Labor Relations Act (NLRA) gives employees the right to self-organization, and Section 8 subsequently provides more specific protections from employer incursion. Initially under the NLRA, there was no impetus for the NLRB to conduct an election for the certification of a union. Instead, the NLRB could use unionization cards signed by a majority of employees to force an employer to enter collective bargaining. The election precedent didn’t emerge until first the 1939 case of Cudahy Packing Co., where an election was deemed necessary to determine a confusion between an independent and CIO union. This requirement was furthered in 1947, when the Taft-Hartley Act allowed employers to request a board-supervised election when faced with an unionizing effort. This made elections the primary method by which unions gained certification and stripped the NLRB of early uniform authority to enforce the right to unionize.
Still, the card check system remained a facet of NLRB enforcement tools allowing unionization after Taft-Hartley. In 1949’s Joy Silk Mills, Inc., 85 NLRB 1263 set an eponymous precedent that gave workers a fierce weapon against employer violation. In the case of illegal labor practices, the NLRB could immediately force an employer to enter bargaining with their union, rather than certifying an election or a rerun election. Although limited in its usage, the precedent was still significant in that it preserved multiple avenues towards collective bargaining that the NLRB could employ. Ultimately, Joy Silk disappeared without fanfare, where it was proclaimed as a nonfactor in NLRB v. Gissel Packing Co.. In it, though the right of the NLRB to declare a union absent of an election, there was nevertheless an admission of the abandonment of the Joy Silk Doctrine. NLRB v. Gissel Packing Co. further complexified and narrowed the use of card-check against elections, with a Gissel bargaining order being issued only rarely and in cases of egregious violations.
The Emergence of Union Avoidance
At the same time that the employer prerogative to control and manage unionization was being expanded by the NLRB, private corporations and law firms were beginning to pursue aggressive and targeted campaigns against unionization. Union Avoidance law firms were not new (some of them had been founded right along with the passing of the NLRA) but they didn’t begin to proliferate until later in the century. The 1970s and the 1980s saw a significant growth and expansion of such law firms into huge industries, employed by numerous employers. The Reagan NLRB gave such Union Avoidance organizations further rights to push against unionization, and an increasingly conservative economic climate produced an even more business friendly environment at the direct expense of labor.
By the turn of the 21st century, union avoidance was a near universal phenomenon. Nearly all employers faced with a unionizing claim campaign against it, and about 75% of employers specifically hire union avoidance firms to help with their campaign, spending $340 million annually on the issue. Employers have always tried to prevent worker organization, but with the emergence of large firms and corporations, they are more capable than ever at effectively squashing efforts. This is not to mention unfair and illegal practices, which remain rampant in union elections. An Economic Policy Institute study shows that 41.5% of union elections are tinged with unfair labor practice claims, a rate which obviously demonstrates the lack of legitimate deterrents to labor violations being used by the NLRB. Unionization has decreased in the last 60 years, certainly, but the statistic alone fails to capture the policies, corporations, and violations that have informed that shift, moving the NLRB from an institution designed to support unions to one which upholds and allows union busting.
Walking a Fine Line: Almost or Near Violations of Union Law
Employers Can Manage to Do A Lot
Employers are hardly handcuffed in their prerogative to control unionizing activities at their workplaces, and as such are able to fairly effectively deter union organization and prevent successful union elections. First and foremost, they are able to regulate the distribution of information on unionizing with near universality. They do this through their right to restrict pro-union information as well as through their prerogative to mandate anti-union meeting attendance as well as distribute anti-union materials. In Cedar Fair Nursery v. Hassid, the Supreme Court struck down a California law requiring corporations to grant property access to labor organizers, who could then inform workers of their rights to unionize. The court determined that such a law constituted a per se physical taking under the Fifth Amendment, and in doing so prevented that legally protected exchange of information from occurring. Moreover, employers are able to restrict the actions not only of external organizers, but also of their own employees. Under current precedent, the NLRB has established that employers have the right to control and prevent union discussion in work areas. This prerogative is so strong in fact, that in the case of Beverly Enterprises-Hawaii, the Board ruled that a justification of a restriction as interfering with work is entirely unnecessary to restrict union-related discussion. Ultimately, each of these allowable restrictions creates a situation where the dissemination of pro-union information can be incredibly limited, making the process of unionizing employees far more difficult.
The issue of information, however, is not just in its restriction. Employers are further allowed to force their employees to receive anti-union information, first through the free dissemination of information, like pamphlets, though a workplace, and then through the requirement of anti-union meeting attendance, as well as supervisor cornering. NLRB precedent has determined so-called captive audience meetings to be entirely permissible, allowing for employers who identify the possibility of unionization to proactively force employees to listen to anti-union propaganda, oftentimes without an opportunity to speak or ask questions. Such captive audience meetings can also include employer and supervisor cornerings, where one-on-one meetings can be turned into discussions about unionizing efforts, and both coercive and socially exploitative tactics can be used with little fear of recourse. Although explicit threats and fear-mongering is fairly restricted by the NLRB, the allowance of captive audience meetings allows employers to carefully walk that line, making employees anxious about the possibility of unionization without ever crossing a line into prosecutable territory.
These methods for union avoidance are further spurred and allowed by the proliferation of union avoidance law firms. Such firms are designed to target campaigns against unionization and are very often the front line of defense against a potentially unionizing workplace. More pernicious than individualized corporate approaches against unionization, law firms will exploit tried and true strategies that will be incredibly effective at walking that narrow line necessary to stop a union without technically breaking the law. In one case, union avoidance firm Jackson Lewis promotes themselves as being able to “inoculate employees against the union virus,” language that is both incredibly demeaning and frightening in its confidence. Ultimately, it is these firms which spur and support those earlier tactics used, and it's through their activity that holes in poorly constructed statutes will be exploited.
Legal Tactics are Incredibly Effective
Each of these techniques is not only theoretically damaging to the idea of unionization, it is also verifiably effective at significantly reducing unionization rates. Using consultants and law firms alone will manage to bring an election success rate from 52% to 43%. When captive audience meetings are employed, as they are in over 89% of elections, the success rate of elections drops to 47% from the base of 73% when they aren’t employed. These tactics, while entirely legal, have the effect of reducing unionization rates significantly, and the reason for that isn’t entirely surprising. Each of these methods allows employers to monopolize information, essentially producing in workplaces the sham elections which Americans would scorn at if demonstrated in global authoritarian regimes. In a democratic system, which the U.S. collective bargaining system is purported to be, the process should be fair and ultimately the results should reflect public sentiment (which generally favors unionization). Instead, the current system is so broken that a union avoidance consulting firm like the Labor Relations Institute can confidently implement a money back guarantee in the event of a union election win.
No Reason Not to Break the Law: What Can’t Employers Do?
Despite the seemingly endless possibilities that employers have to potentially prevent unionization, unfair labor practice charges in elections are incredibly common. The Economic Policy Institute found that charges are levied in about 42% of all union elections, with some research suggesting that grievances are filed in less than half of all elections where serious violations occur. These rampant violations of labor law oftentimes take two primary forms. The first: coercion and threatening occurs in about 30% of all cases and can range from threatening to close a firm to actual threats of physical violence, with plenty of different cases in between. The second: firing of employees who attempt to unionize or for union activities occurs at a nearly identical rate. In both cases, it can be difficult to demonstrate guilt, with exact language being used and exact motivations behind a firing being incredibly challenging to parse and allowing employers at least some leeway in union busting that could be attributable to another motive.
Violators Aren’t Deterred
At its best, when violators are punished to the extent that the NLRB has authority, the NLRB still doesn’t properly and appropriately deter unfair labor practices. Even after an election is certified with a union victory or after an allegation of a violation has been levied against an employer, management still has immense filibustering power to ensure that results are delayed and limited. They can appeal decisions and refuse to bargain initially, pushing the process back in an attempt to exhaust union energy and resources. Even in the most egregious cases, employers still have few consequences; they may succeed in delaying a case for 3 to 5 years and face only backpay as a remedy. Such effective filibustering produces a climate where over half of all successful union elections fail to get a collective bargaining agreement within a year.
When elections are lost due to violations, the remedies can be even less sufficient. Initially under the NLRB, card check was sufficient for the establishment of a union, and even when elections were necessary, a card check would have been implemented in the case of labor violations. Card check is still used to call an election, needing 30% employee signatures to trigger a secret ballot vote, and unions rarely ask for an election without signature cards from a strong majority of employees. All this would suggest that lost elections would be fairly uncommon, but the rampancy of labor violations (as well as effective legal remedies) produces a climate where many union elections simply aren’t won.
As much as elections sound like the answer for union establishment, they’re also the best avenue for employers to effect results, especially when labor violations come into play. Unfortunately, the solution for dealing with an election where the employer committed a violation involved throwing away the original election results and holding a new one. When an election is redone, the results of the violation, especially when that violation involves threats and coercion, cannot be undone. It shouldn’t be a surprise that in redo elections, employees vote for a union at a much lower rate than in first time elections. Ultimately, these redo elections can’t account for the fact that threats and violations stick, allowing employers to still benefit from their violations without fear that they’ll ultimately have to bargain with a union.
Solving the Problems
Any solution to the problems that underlie a fundamentally broken system for enforcing the right to form an union requires two important assumptions. First, that unions are an inherent good for workers, as demonstrated by studies connecting unionization to reduced income inequality. Second, is that it is the NLRB’s responsibility to protect unionization, but also implicitly to encourage it. The second assumption is predicated on the premise that management is inherently anti-union, and given their power relative to workers, any union election produced without a counterbalancing force (such as the NLRB) would constitute an unfair election. Given these two assumptions, the prerogative of the NLRB is to aggressively combat union busting and to encourage unionization within workplaces. Currently, the NLRB does neither, and the following solutions represent initial, albeit incomplete steps, towards remedying the crisis of unionization in the U.S.
Expanding the Zone
Not only are current legal remedies to unionization effective, it can also be extremely difficult to identify if illegal actions can occur within the framework of a legal activity. Captive audience meetings can be and often are tinged with coercion and threats, and union avoidance firms and consultants are by their very nature working along a very narrow line of barely fitting within management rights under the law. A remedy to this is a restriction not just of explicit and coercive anti-union activity, but also of those activities that often produce strong anti-union results.
Captive audience meetings are not only incredibly effective at reducing union election win rates significantly, they also blatantly violate workers rights under the NLRA. Under section 7 and guaranteed from precedent, workers are guaranteed the right to refrain from any activities, including listening to employer speech with regards to their rights. The contradiction between the right to refrain and the allowance of captive audience meetings is inherent, and the NLRB must take steps to close that gap and prevent an unequal distribution of information between the two sides of a given labor dispute. Any election whereby voters are forced to hear from one side and restricted from hearing from the other side is inherently an undemocratic one.
Along those lines, the unequal distribution of voluntary information is similarly corrupt and demonstrative of an unfair system. By allowing for the distribution of anti-union information in workplaces, while also permitting the restriction of pro-union information by workplaces, the NLRB and the U.S. Court System has produced an obvious advantage for employers in preventing the creation of a union. A remedy would involve solving that problem on one of two ends: either by restricting the right of employers to distribute anti-union information or by preventing employers from banning pro-union information unless it interferes with work activities. In accordance with the latter, the Supreme Court should overturn Cedar Point Nursery v. Hassid, and allow for an enforced inclusion of labor organizers in workplaces and thus an informed provider of pro-union information to combat such authoritative anti-union figures. Either solution would serve to democratize the distribution of information, with the latter likely being more enforceable. Regardless, something has to give in the current system of information distribution during union establishment.
Finally, something has to be done about the use of union avoidance law firms and their remarkable effectiveness at protecting employers from unionization. Currently, legislators are looking at places where they can eliminate tax loopholes that allow corporations to write-off union avoidance law firms, but even this won’t go far enough. A proposal to remedy this may involve more proactive investigation on the part of the NLRB. Mandated transparency and investigation is absolutely necessary, and moreover, the mere employment of a union-avoidance firm should be considered sufficient to trigger NLRB investigation into the behaviors of an employer before an election. By tying the use of union avoidance to a more significant investigative mechanism, corporations would be discouraged from their usage, and limited in their current carte blanche authority for implementation. Stripping employers and law firms of real time authority would have the effect of significantly reducing their effectiveness, and ideally limiting violations.
Reinstating and Extending Joy Silk
Enforcement mechanisms are also absolutely critical to the successful implementation of any restrictions. Greater investigations will discourage violations, but if said violations still effectively prevent unionization, they will persist. Thus, it is important to reconsider the heavy influence that elections hold over the unionizing process, and return to consideration of the Joy Silk doctrine, as well as earlier precedents with regards to the use of a card-check system.
The current system used by the NLRB doesn’t do nearly enough to deter unfair labor practices during union elections, in part because the enforcement mechanism still provides employers a greater incentive to violate than disincentive to allow for the election. Moreover, Joy Silk is a clear and simple doctrine that is entirely within the purview of the NLRB to bring back. In NLRB v. Gissel Packing Co., the Court firmly established that the NLRB had the authority to use card checks with relative discretion and so-called Gissel orders requiring an employer to enter into collective bargaining with a union are still issued by the NLRB, albeit rarely. All the reinstatement of Joy Silk would serve to do is make the enforcement of orders to collective bargaining more common and viable. Rather than requiring incredibly egregious and explicit violations, the NLRB could order for collective bargaining in any instance where an election might have been compromised, a far more reasonable and logical standard.
Ultimately, though, it will take a more sufficient policy than just Joy Silk to properly protect unions from unfair labor violations. Under the Joy Silk doctrine, card checks were still drastically underutilized, and constituted a slim minority of all union establishments. Regardless, they are both the least corruptible and simplest way to implement a union, and could reasonably be employed as the primary method for union establishment. Such a move would require a repeal of parts of the Taft-Hartley Act as it isn’t within the NLRB’s jurisdiction to govern over. In absence of such a move, the NLRB should simply utilize its authority to enforce Joy Silk to the fullest extent it can under the law, all while investigating and identifying violations wherever they may occur.
Conclusion
The issue of NLRB enforcement of the rights to unionize takes the form of a nightmarish Russian Doll. Not only are the laws inadequate to ensure that employers cannot unduly reduce union election win rates, the enforcement mechanisms are such that employers aren’t encouraged to follow even the loose fitting laws. Not only can employers break laws with few repercussions, they can also postpone bargaining and refuse to bargain indefinitely even when confronted with a successful election mandate. Still, the issue is not without solutions, and very fortunately, nearly all of these pernicious incursions into collective bargaining rights are non-legislative in nature. It only takes one effective NLRB, with the help of a few courts, to restructure the effectiveness of labor law. As for the legislative solutions, they’re both simple and straightforward. Discouraging union avoidance through increased inspections is obvious, and allowing for card-checks would trim the fat of forcing unions to achieve majorities twice against all the force of their employers.
All told, the state of union law is discouraging, but it isn’t bleak. Activists should be encouraged by recent upticks in the unionization of new industries, as well as the popular sentiment in favor of worker organization. The NLRB can act to make collective bargaining significantly easier, and legislation can be pushed through that will support their efforts. Moreover, any success is insufficient without the support and participation of workers, a need which is becoming increasingly met in industries around the United States. It's hardly a time for celebration, but there’s most definitely a light at the end of the tunnel, one which looks a lot like that first National Labor Relations Act nearly 100 years ago.