Op-Ed: Underjoyed About Joy Silk
Collective bargaining and legal methods for equalizing the playing field are an effort at implementing some form of labor peace. It is no surprise that government institutions like the NLRB are amenable to revising labor laws that funnel more workers into “peaceful” relations with their employers, while expanding the right to strike, which has been thoroughly restricted over the past seven decades, rarely emerges as a serious consideration.
The NLRB wants to change the rules around how unions can win legal recognition from employers. A union organizer explains why this doctrine won’t do much for workers.
By Alex Riccio
On April 11, 2022 Jennifer Abruzzo, the General Counsel of the National Labor Relations Board (NLRB), filed a brief stating her desire to revive a doctrine known as Joy Silk. This brief has led to an explosion of commentaries and reactions, with the mouthpieces of the employer class catastrophizing over the prospects of Joy Silk while liberals, and even some left-wing pundits, are celebrating the memo as if it signals the arrival of the new messiah, Jennifer Abruzzo, ready to smite all enemies of labor unions with her righteous brand of jurisprudence. To a degree I sympathize with those jubilant labor supporters, but I cannot muster the same excitement for Joy Silk, as I see it having minimal effect on restraining employers' pugnacious willingness to violate labor law.
Quickly, Joy Silk is a legal doctrine which requires employers to demonstrate a good faith doubt that a majority of their employees wish to form a union if said employees push for union recognition. Without producing such a credible doubt, the employer is expected to recognize their workers’ union.
Right-wingers claim this doctrine will effectively require employers to grant automatic “card check” recognition to unions, while more measured labor law commentators have demonstrated that in fact the purpose of the doctrine is to discourage employers from violating labor law, and therefore the doctrine will lead to an increase in NLRB elections rather then an increase in card check recognition.
Practically, then, what this means is Joy Silk is another mechanism for unions to file unfair labor practices (ULPs) against employers with the hope that most employers will simply allow workers to proceed to an NLRB election without interference. Here is where I’m underwhelmed. One, ULPs against employers rarely lead to anything of meaningful consequence. The NLRB can’t impose fines, and its overall enforcement mechanisms are quite minimal. Typically ULPs just result in a written notice being posted from the employer in a workplace, or back pay for a fired worker, or, if you’re lucky, a demand to bargain with a union, which employers can still stall out through legal means.
Two, ULPs take forever and time is the greatest weapon of the boss. By the time a union “wins”, much of the support from workers has been eroded as they’ve been exhausted by the whole process. Where an industry is prone to high turnover, it’s likely that many of the union supporters no longer work at a site once a ULP has finally been settled. Joy Silk would be subject to the same long delays as any other NLRB process.
Three, and this is probably my biggest reason for not jumping for joy, a Joy Silk framework has zero impact on large corporate employers, for instance a Starbucks or Amazon. If you could even muster enough authorization cards, and then somehow present those cards with a majority of employees to demonstrate beyond a reasonable doubt to the employer that workers want a union, who honestly believes such corporations will actually be compelled to follow labor law? A Starbucks is going to look at this doctrine, if it even has a chance of being revived, and come up with a thousand (likely credible) claims for doubting the workers want a union. Even if they’re not credible they’ll still take it to court and stall the whole process, and proceed to illegally bust the union while things are dragged on in the courts for years. Joy Silk won’t do anything to make big companies, the ones unions must take on, comply with the law or become allergic to ruthlessly fighting unions however they deem necessary. I’ll concede it could help with compelling small employers to follow the doctrine, but it’s simply not enough to take on small shops one at a time while getting our asses handed to us by the ruling class that employs the vast majority all the while.
Joy Silk, and for that matter the PRO Act, is just more tinkering around the edges of the real problems plaguing organized labor, which is crudely the fact that workers and employers have fundamentally opposing interests and are locked in a class war. I wouldn’t object to improvements in labor law, small and ineffectual as they may be, and don’t believe that all such reforms must be abandoned outright. But unions placing a primacy on legal strategies as a means to increasing union power is a major factor in why unions today are so small in numbers and weak in nature. The plain reality is that if your strategies are focused primarily around winning political inches, then inches at most are all you can gain. Unions must go much bigger than coloring within the lines of labor law.
Strategies to revive union power, as I believe enthusiasts for Joy Silk actually want to see, must be based on utilizing workers greatest weapon: the withdrawal of their labor, whether by legal or illegal means. Labor creates all value, which is what makes the collective action of workers dangerous for employers. Frankly this is such an obvious point, but it bears repeating ad nauseum because many have seemed to have forgotten the foundational power analysis in the circumstance between workers and owners.
Additionally, even if one does wish for an improved set of labor laws the methods for achieving this are rooted in workplace actions. Today everyone in labor circles knows the concept of “labor peace”: when unions and employers agree to keep production rolling and to settle their differences outside of the workplace. Collective bargaining and legal methods for equalizing the playing field are an effort at implementing some form of labor peace. It is no surprise that government institutions like the NLRB are amenable to revising labor laws that funnel more workers into “peaceful” relations with their employers, while expanding the right to strike, which has been thoroughly restricted over the past seven decades, rarely emerges as a serious consideration.
Of course peace is temporary, and I think even those that desire labor peace understand this fact. But the precondition for peace is war. At the moment, unions have not produced a war sufficient enough to compel employers, or the state, to intervene with peace offerings. Strikes, workplace disruptions, sabotage, all of these are the methods of class war for workers that, if ratcheted up, will force a crisis big enough to usher in a set of legal reforms. I’d posit that the frequency and militancy of labor strikes in the early 1930s was the necessary prelude to the Wagner Act itself, the law that brought the NLRB into existence, and any current efforts to fundamentally shift labor relations as the Act did should view this prehistory as instructive.
The premise of this piece is the law won’t save workers. The whole purpose of law is to mollify dissent by channeling it through the preferred channels of the state. Joy Silk in all likelihood will just dangle more carrots in front of most unions who won’t be able to resist falling into the trap of pursuing futile legal resolutions to a fight that must be won on the shop floor.
Alex Riccio is an organizer for Workers United, and a member of the IWW. He hosts Laborwave Radio, a podcast discussing work and union strategies.