Card check redux
Can we restore union elections through card check without passing a law? Possibly so.
A decade ago organized labor got its heart broken by something called the Employee Free Choice Act. The bill would have restored labor’s ability to organize a workplace through the informal collection of union authorization cards, a process known as “card check.” That was the status quo under the 1935 National Labor Relations Act, a.k.a. the Wagner Act, before it was rewritten in 1947 by the anti-labor Taft-Hartley amendments. Today a workplace can organize through card check only if management recognizes the union voluntarily. Otherwise there has to be an NLRB-supervised election under circumstances favorable to management.
The Employee Free Choice Act cleared a House vote, 241-185, but a companion bill in the Senate sponsored by Edward Kennedy fell nine votes short of breaking a filibuster, and anyway, President George W. Bush would have vetoed it. Then Barack Obama was elected president. Candidate Obama promised to sign the Employee Free Choice Act into law, and a smart freshman senator named Al Franken pledged to make it the first bill he’d co-sponsor. But as president Obama didn’t press for the bill’s passage, various Senate Democrats (including California Dianne Feinstein!) withdrew their support, and the Employee Free Choice Act died a quiet death. Seven years later, Obama was succeeded in office by Donald Trump, a billionaire reality television star and pathological narcissist whose racist rhetoric and protectionist bombast won him support from the majority of whites from union households. Trump won this group by 12 percentage points. It’s hard not to wonder whether these folks would have voted differently had the Democrats delivered on card check.
The Protecting the Right to Organize (PRO) Act kinda-sorta brings card check back, but only if the employer engages in unlawful behavior that impairs a fair election (as, granted, employers often do). Anyway, the PRO Act isn’t going to pass this year because Arizona’s two Democratic senators (and possibly also Virginia’s Mark Warner) oppose it.
But now Jennifer Abruzzo, general counsel of the National Labor Relations Board and the Biden administration’s best and most powerful performer on labor policy, is inviting the Democratic-majority board to bring back card check administratively. This can actually be done, it turns out, because until 1969 the NLRB required employers to recognize unionization through card check unless the employer had a demonstrable reason to doubt that the majority of workers in the proposed bargaining unit really and truly chose unionization. The NLRB changed its policy in 1969 because … well, it’s a complicated but fascinating story that includes an associate general counsel for the NLRB blurting out an untruth to the Supreme Court. Which, by the way, shame on him. Anyway, I tell this tangled tale in my latest New Republic column, which I urge you to read because (you may have noticed) hardly anybody covers what Abruzzo does and it’s really important to follow this stuff if you give a crap about income inequality, wage stagnation, and the decline of the Democratic Party. If you don’t care about those things, you have my permission not to read my piece.