Biden NLRB Lawyers vs. Secret-Ballot Elections

Jennifer Abruzzo NLRB Political Cartoon
At the aggressive prodding of Joe Biden-appointed NLRB General Counsel Jennifer Abruzzo, Biden appointees to the NLRB itself could soon overturn decades of precedent to expand massively coercive “card check” unionization. (Credit: A. F. Branco/

Bureaucratic Scheme to Mandate ‘Card Check’ Unionization Advances

Shortly after her narrow Senate confirmation, Joe Biden’s selection for general counsel of the National Labor Relations Board (NLRB), Jennifer Abruzzo, began a campaign to curtail sharply workers’ opportunities to have a secret-ballot vote before a union monopoly can be imposed on them.

Ms. Abruzzo contends that the board should revive a 1940’s and 50’s-era legal standard called Joy Silk that it has long since abandoned, so that employers can routinely be forced to bargain exclusively with union bosses solely on the basis of union “cards.”

As general counsel, Ms. Abruzzo can identify prime cases for union-label NLRB board members to turn into damaging precedents.

In a pending case involving numerous Starbucks locations, she’s advised the board to revive Joy Silk by imposing a union monopoly on workers without a secret-ballot vote.

There are serious legal questions about whether Ms. Abruzzo is even correctly characterizing the Joy Silk standard, or instead inventing a new standard out of whole cloth that better suits union bosses.

Her plan may well be in conflict with the National Labor Relations Act as amended and interpreted by the U.S. Supreme Court.

It’s indisputable that card checks are and have always been an inferior gauge of employees’ views on unions. That’s why up to now the NLRB has only rarely authorized them over employers’ objections. 

Employers Would Have to Jump Through Procedural Hoops Before Employees Could Vote

There is no way to vote privately “no” in a card check drive, because the “votes” are employee signatures collected directly by union organizers. Workers can be misled about the true purpose of cards, or simply worn down by workplace activists into signing.

It’s therefore no surprise that workers often cast secret-ballot votes against unions after signing union cards.

Under current NLRB rules, when union organizers present employers with union cards, the employers don’t have to accept them.

They can request that a secret-ballot election be held to determine the union’s true level of support.

Jennifer Abruzzo claims employers must establish their “good faith” by furnishing unambiguous proof cards were obtained illegally before employees can be allowed a secret-ballot vote. But suspicion of card check signatures is always warranted because of the coercive manner in which they are collected.

Nevertheless, Ms. Abruzzo argues in her brief, because Starbucks was presented with union-collected signatures from workers at several of its stores, union officials should be installed at those locations without secret-ballot votes.

If the board goes along, Big Labor organizers will almost always be able to bypass a secret-ballot vote, because the Abruzzo standard for employer “good faith” opposition to a card check is almost impossible to meet. Unfortunately, it is all too likely Ms. Abruzzo will prevail.

NLRB Could Soon Rule on Radical Abruzzo Theories

“Among the four current members of the NLRB, two are ex-union lawyers appointed by President Biden,” noted National Right to Work Committee Vice President Greg Mourad. “Another is an ex-Ted Kennedy aide elevated to the NLRB chairmanship by Mr. Biden. And Trump holdover Marvin Kaplan, the sole board member who is not a forced-unionism radical, has mustered tepid opposition at best to union power grabs.”

With the Starbucks case rapidly moving forward, it appears likely that the NLRB will soon weigh in on the Abruzzo “reinterpretation” of federal labor law.

“This will probably be the first real test of the willingness of Chairman Lauren McFerran’s NLRB to accept Jennifer Abruzzo’s radical card-check theories,” said Mr. Mourad.

“Ms. McFerran and Biden appointees David Prouty and Gwynne Wilcox have already shown a willingness to rule against workers to benefit their union boss backers, but Ms. Abruzzo’s plans for massive card-check expansion are regarded as extreme even by some Big Labor partisans.

“The board may choose to reject Ms. Abruzzo’s theories, or save the question for another day.

“Sadly, what seems the most likely scenario now is the NLRB will side with Ms. Abruzzo and effectively direct that workers across the country be saddled with union hierarchies that they and their colleagues never voted for.

“But the Committee is already preparing in that case for a counterattack.

This spring, our legislative staff has been actively working on Capitol Hill to build support for FY 2024 appropriations provisions blocking the NLRB from using taxpayer money to implement any decision that effectively mandates card check unionization of employees.”

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