October 16, 2021

Volume XI, Number 289


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Draconian: NLRB Signals Even Harsher Penalties for Employers May Be Coming

Recently appointed National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum to all NLRB Regional Directors on Aug. 12, 2021, outlining types of cases they should submit to the Division of Advice. Abruzzo states that the topics identified in the memorandum compel centralized consideration and reexamination on whether change is necessary “to fulfill the Act’s mission.”

Among the litany of cases identified in the memo are “cases in which an employer refuses to recognize and bargain with a union where the union presents evidence of a card majority, but where the employer is unable to establish a good faith doubt as to majority status. . . . See Joy Silk Mills, Inc., 85 NLRB 1263 (1949).” 

Under Section 8(a)(5) of the National Labor Relations Act, it is an unfair labor practice for an employer to refuse to recognize and bargain with a union that has been designated as the representative for a majority of the employees in a bargaining unit. In Joy Silk Mills, Inc., the NLRB held that an employer violated Section 8(a)(5) and would be ordered to bargain with the union if it was presented with a union request for recognition and did not possess a good faith doubt as to the union’s majority status. 

The Supreme Court’s 1969 decision in NLRB v. Gissel Packing Co. altered the Board’s use of bargaining orders by removing the “good faith doubt” test and restricting the number of circumstances in which they can be ordered. Thus, under Gissel Packing, an employer faced with an alleged majority of signed union cards could still insist on an election and need not make an independent inquiry into the validity of the cards. The more employer-friendly standard announced in Gissel Packing meant that only outrageous or pervasive employer misconduct would warrant a bargaining order, where under Joy Silk, an employer’s failure to establish a good faith doubt or almost any unfair labor practice could serve as the basis for a bargaining order. 

Abruzzo’s memo suggests that the NLRB may try to revive the Joy Silk standard, which would make it easier for the Board to find that circumstances exist that warrant a bargaining order. Given the draconian and punitive nature of bargaining orders, which require an employer to recognize and bargain with a union that has not won an election, employers going through union campaigns should be aware of this potential drastic shift.

© 2021 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 266

About this Author


A detailed-oriented and strategic thinker, Colleen Naumovich is committed to helping her clients navigate the ever-changing field of labor and employment law, understand how the laws affect every facet of their business, and implement best practices.

Colleen brings focus and dedication to assisting her employer clients with various workplace and employee needs they have. She conducts legal research and drafts memoranda, motions, and positions statements to the National Labor Relations Board. She also helps clients prepare for trial by reviewing depositions and providing summaries of...

David J. Pryzbylski, Barnes Thornburg Law Firm, Indianapolis, Labor Law Attorney

David concentrates a large portion of his practice on assisting employers with traditional labor matters. His deep experience includes collective bargaining, work stoppages, arbitrations, union avoidance training and strategies, union representation elections, unfair labor practice charges, contract administration, and various other labor relations issues.

David has helped companies secure favorable outcomes with labor issues around the country. He has experience with numerous labor unions, including the Steelworkers, Teamsters, Laborers, Sheet...