Since February 16, 20 of the 24 workers at the Great Lakes Coffee Roasting Company in Detroit have been on strike, fighting for a union. All 20 have signed cards designating the restaurant workers’ union UNITE HERE as their exclusive bargaining representative. Great Lakes has refused to recognize the union, insisting that the workers proceed with a formal election by secret ballot. On February 25, nine days into the strike (which is still in effect), UNITE HERE filed a legal complaint against Great Lakes to the National Labor Relations Board (NLRB). The complaint argues that by refusing to recognize the union as the workers’ “designated bargaining representative,” Great Lakes is breaking the law.
Small though it may seem, the case could be of enormous consequence for the future of the American labor movement. It is part of a concerted effort by unions and the NLRB to return to a doctrine known as “Joy Silk,” which allowed workers to more easily demand that their employer bargain with their union without going through a formal NLRB-run election. NLRB General Counsel Jennifer Abruzzo indicated last year that she wants to resurrect Joy Silk. UNITE HERE’s complaint against Great Lakes gives her the chance to do so.
A return to Joy Silk would be significant on two registers. In the short term, it would give workers a tool to keep employers from interfering in union elections. In the long run, it could spark a deeper shift to worker power by helping to sever the link between workplace democracy and secret ballot elections altogether. This may seem paradoxical at first. But it is an open secret that NLRB-run elections are exercises in anti-democracy. The process effectively functions as an opportunity for employers to coerce workers through anti-union tactics (legal and otherwise). This perverse legal regime—elections as a tool of repression—has served to quash union drives for decades. It was not always so.
Time was, workers did not have to win an election to prove their desire for a union. The Wagner Act of 1935 authorized the NLRB to recognize unions either by secret ballot election or by “any other suitable method.” Workers who wanted a union didn’t need to express themselves at a ballot box. “If there is a strike in a plant where a thousand people are working and 900 go out, you do not have to have an election to determine what the 900 want,” explained William Leiserson, a labor expert and future NLRB member, during congressional hearings on the act. “They are telling you. It is silly to go through the election business then.”
Workers’ right to express their desires as a collective, rather than as isolated individuals at a ballot box, was understood as a counterweight to the coercive forces inherent in a capitalist workplace. From 1936 to 1940, the NLRB issued 272 union certifications—nearly a quarter of the total number—based on “other suitable methods” beyond an election. Union cards, strike rolls, and even workers’ testimony were evidence enough.
Small wonder that business lobbies spent much of the 1940s attacking the board’s non-electoral-recognition policy. The Taft-Hartley Act of 1947 codified their opposition. Congress got rid of the “other suitable methods” clause and ordered the NLRB to certify unions only by secret ballot election. But it also left an important caveat in the law—or perhaps an inconsistency. The board could still force an employer to recognize a union without an election if the union had presented proof of majority support and the employer had no “good faith [reason to] doubt the Union’s majority.” In a 1949 case called Joy Silk, the board exercised that prerogative and indicated that any unfair labor practice committed by an employer in the lead-up to an election could count as evidence of “bad faith.”
Joy Silk was not a return to the non-electoral recognition of the late-1930s. It turned on an existentialist question about an employer’s motive (good faith or not?) that was difficult to prove. Employers could and did insist on elections even when workers came to them with clear evidence of majority support for a union. But the threat of a Joy Silk bargaining order proved a powerful incentive to keep employers in line during the election process. In the decade following the doctrine’s invention, the rate of employer unfair labor practices during union elections remained quite low.
That changed in the 1970s, when a conservative NLRB abandoned Joy Silk and declared that an employer could simply insist on an election and reject any other proof of union majority, regardless of whether it had any “good faith doubt” of that majority. It did not take long for businesses to transform the NLRB’s election process into a union-busting tool. In 2016–17, employers committed unfair labor practices in at least 41.5 percent of NLRB elections. Meanwhile, efforts to reinstate some version of the pre–Taft Hartley standards for non-electoral recognition (President Obama’s Employee Free Choice Act, President Biden’s Pro Act) have gone nowhere. Taft-Hartley will remain labor law for the foreseeable future.
That is why the board’s interest in reinstating Joy Silk matters. It is a feasible measure within the current legislative constraints. More important, it would change the outlook for unionizing workers across the country—not radically, but not negligibly either. Its mid-century record suggests that a revived Joy Silk doctrine would help curtail employers’ illegal anti-union tactics during an election campaign. If those tactics continued, the board would have a powerful remedy at its disposal: It could simply order that the union be recognized. Think of Joy Silk as a voting rights measure for workplace democracy. It is not a structural shift, but it does about as much as the board can to make elections fairer.
Even as it moves us closer to free and fair union elections, however, Joy Silk reminds us that an election for a union cannot ever be fair or free. That is its deeper potential. Union elections are in their essence an undemocratic form. (As one union organizer put it to me during a training: “Requiring unions to go through an NLRB election is the first step in an anti-union campaign.”) That fact is obscured by the facile but rhetorically potent identification of democracy with a secret ballot. And yet, within living memory, American labor law has also accepted that non-electoral forms of union recognition may be more democratic than a vote. Joy Silk can help us recover the idea that workers express their desires freely as a collective over and over, in cards and strikes and pickets, with body and voice, long before they ever head to the ballot box.
Take the workers at Great Lakes Coffee. Twenty of 24 have struck for three weeks. Twenty have signed union cards. Nineteen have even recorded videos, submitted to the NLRB, testifying that they want a union and authorizing UNITE HERE as their bargaining representative. If we are serious about democracy in the workplace, we should not allow an employer to force an election to determine what those workers want. They are already telling us.