Minorities of workers are choosing union representation for 100 percent of their colleagues. This is against the spirit of the law.
In election after election, a minority of workers are choosing union representation for 100 percent of their colleagues. This is against the spirit of the law — and probably the letter, too.
H ere’s a case the Supreme Court should hear. For nearly a century, the National Labor Relations Act has been wrongly interpreted, violating the fundamental principle of workplace democracy.
The act — which affects most private-sector workers — clearly says that unions must win the backing of a majority of workers in order to organize a particular workplace. About 60 percent of unions met that threshold in 2022, but the rest didn’t, and more than 74,000 workers were unionized without the majority support of their co-workers. Labor unions are more than capable of clearing this bar, but it will likely take a court case to restore complete workplace democracy.
In a new study, we show exactly what the National Labor Relations Act says — and how the 1935 law’s clear meaning was almost immediately ignored. The NLRA declares that the “majority of the employees in a unit” have the power to determine whether a union represents them. The key word is “majority,” which indicates that more than half of a bargaining unit’s workers must vote before they can unionize. The only other plausible interpretation is that a union must win when a majority of workers turn out to vote: essentially, a quorum requirement. In 2022, 80 percent of private-sector unionization elections under the NLRA met that bar.
The National Labor Relations Board, which the NLRA created, initially agreed with the majority-of-a-unit standard. In a 1936 decision involving Chrysler, the board rejected a unionization election in which only 125 out of an eligible 700 workers had voted. While 97 percent of the voting workers supported organizing, the board rightly concluded that a mere 17 percent of workers didn’t represent the views of the majority. The law’s text required that ruling. But the NLRB reversed course within months, giving a minority of workers the power to determine the majority’s future in a case involving newspaper workers. In a separate decision, the board declared that it couldn’t require a majority of workers to vote in favor of unionization, nor could it require the lower bar of a quorum.
The NLRB, in the 1930s, defended its rejection of the law’s plain text by saying that, with a majority requirement, “the purpose of the [NLRA] would be thwarted.” But the board itself is doing the thwarting of workers’ rights and workplace democracy.
The result is that unions can now win elections despite extremely low levels of turnout. Last year, at a construction company, only 12.5 percent of eligible employees participated in an election that the union won. In the United Football League, only 12.9 percent of players voted a union into power. And in 2022, a mere three employees forced a union on a California Starbucks with 28 workers, although this election is under appeal at the NLRB. In election after election, a minority of workers are choosing representation that speaks for 100 percent of their colleagues.
Earlier this year, Representative Bob Onder (R., Mo.) introduced the Worker Enfranchisement Act, which would require a quorum in union elections. But the NLRB could also move to enforce the current law as it’s written. No employee should be forced to accept a union that doesn’t enjoy the support of a majority of those it claims to represent. Reinstating the legally required standard would undoubtedly elicit a lawsuit from unions who want to keep the status quo. And that would give the federal courts the chance to reject the faulty reasoning that created this injustice in the first place.
In 2018, the Supreme Court overturned a decades-old bad labor precedent in Janus v. AFSCME. Since then, at least two more textualists have joined the bench. Here’s hoping they soon have an opportunity to overturn another wrong ruling — and give American workers the workplace democracy required by law.
Steve Delie is the director of labor policy at the Mackinac Center and the author of Misread: How Legal Authorities Allowed Tyranny of the Minority to Subvert Worker Enfranchisement.
F. Vincent Vernuccio is the president of the Institute for the American Worker.