American workers attempting to form unions in their workplaces are pushing the National Labor Relations Board to expand organizing rights – from reinstating the Joy Silk doctrine that makes unionization easier, to banning captive audience meetings held by employers to discourage organizing efforts.
Their efforts could transform how unions organize workers in the US, especially amid opposition from employers.
Max Capasso, who has worked as a barista at Great Lakes Coffee in Detroit for six months, is one of about 20 workers at the coffee chain currently on strike, demanding their employer recognize their union and collectively bargain with workers.
In January, Capasso said, nine baristas at the Midtown location in Detroit tested positive for Covid-19, and management insisted the remaining workers, despite having been exposed, still come into work. The company denies that workers were asked to come into work sick.
Capasso and others had been communicating with each other about working conditions and low pay, but the Covid-19 issue prompted them to sign a joint letter requesting that management provide hazard pay and not demand workers return to work without being cleared of the virus.
In response, the store location was shut down indefinitely, which incited the union organizing effort with Unite Here Local 24. Twenty out of 24 workers have signed union authorization cards and have been on strike since 16 February to demand recognition.
“We clearly have a vast majority, we’ve clearly proven that we are dedicated to this strike and we are dedicated to this union and getting a contract, and they have refused to acknowledge it,” said Capasso. “We are seeking a higher authority to force their hand and come sit at the table with us.”
During the third week of the strike, workers filed unfair labor practice charges against Great Lakes Coffee with the NLRB, requesting the board reinstate the Joy Silk doctrine, a policy which stipulates an employer must recognize and bargain collectively with a union unless they have a “good faith doubt” of majority support for the union.
Great Lakes Coffee did not respond to multiple requests for comment on the filing.
This would make it easier for workers to form unions as they would not have to hold ballot elections to do so, and under Joy Silk, employers would be forced to bargain collectively with the union if found to have broken labor law during a union election process.
The Biden administration has repeatedly expressed support for expanding union organizing rights, most recently during the State of the Union address. During the speech, Biden said that “when a majority of workers want to form a union they shouldn’t be stopped,” which was reaffirming support for the Protecting the Right to Organize Act, which passed the House last year but has yet to receive a Senate vote.
Biden’s new appointees to the NLRB, including the general counsel, Jennifer Abruzzo, have called for several types of cases for regional offices to bring to the NLRB general counsel office, outlining the office’s priorities, including consideration of requesting the NLRB reinstate Joy Silk, which was abandoned by the NLRB around 1970.
“Given the many years that we have had since Joy Silk was abandoned, we’ve seen over those years, decade upon decade, employers abuse their power at the workplace where they intimidate employees’ efforts to unionize,” said Risa Lieberwitz, a professor of law and employment law at Cornell University. “Bringing Joy Silk back would be a doctrine that more fully respects workers’ rights to unionize.”
Lieberwitz said banning captive audience meetings will probably be more difficult, given employer opposition in citing first amendment rights. But there could be other ways for the board to address the coercive nature of captive audience meetings, such as granting unions equal access and time with workers.
“Now is a chance with a new board and this very creative general counsel to really take actions to engage in review and rethinking about how to make the NLRB work the way it was supposed to,” said Lieberwitz.
Workers trying to unionize at Amazon in New York and Starbucks workers in Alabama have filed unfair labor practice charges with the NLRB to push for the board to ban captive audience meetings held by employers to discourage unionization efforts, a policy that is also included in the Pro Act.
“They’re definitely inherently coercive and we feel absolutely disgusted by Amazon’s union-busting tactics,” said Brett Daniels, an Amazon worker and organizer at JFK8 warehouse in Staten Island, New York. “They need to end and should be banned.”
Daniels said that workers are regularly forced to attend captive audience meetings held by Amazon throughout their work week.
Under the Trump administration, the NLRB fought to overturn state laws that prohibited or limited employers’ use of captive audience meetings during union campaigns, claiming bans limit the free speech of employers.
“There are no first amendment rights there, people are forced to go there. The unions have no way to respond to it and they lie to them,” said Seth Goldstein, a pro bono attorney for the Amazon Labor Union. “Captive audience meetings are inherently coercive and the board has to take action.”
Amazon is publicly and aggressively opposing unionization in their warehouses, with a rerun election currently being held in Alabama after the initial results in 2021 were overturned due to Amazon’s conduct during the election. Amazon is pushing workers to vote no in the NLRB elections that the board ordered after a majority of workers expressed interest in unionization through union authorization cards.
Amazon and Starbucks have rejected criticisms of captive audience meetings, dubbing them “regular informational meetings” or “listening sessions”.
Oregon has a ban on captive audience meetings and Connecticut is currently debating legislation that would grant employees the right to leave these meetings, which business groups strongly oppose.
