August 15, 2022

Volume XII, Number 227

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August 12, 2022

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NLRB General Counsel Seeks to Reinstate Radical Standard for Union Recognition and Restrict Employer Free Speech During Corporate Organizing Campaigns

In contravention of decades-old precedent, employers may be required to recognize unions without a secret ballot election, thereby denying employers the opportunity to protect the private choice of their employees. The National Labor Relations Board’s (“NLRB” or “Board”) General Counsel, Jennifer Abruzzo, argued that the Board should reinstate the recognition process and expand the ability of the Board to order an employer to bargain with a union even without its winning an election.

Under the National Labor Relations Act (“NLRA”), a union can organize an employer through a secret ballot election, or through card check recognition. Currently, an employer presented with evidence that a union wishes to represent its employees may insist upon a secret ballot election overseen by the NLRB. In other words, an employer presented with an alleged majority of signed union authorization cards does not have to take them at face value and recognize the union. Rather, it may insist on an election to determine whether a majority of employees actually support the union and need not make any independent inquiry into the validity of the cards.

In order to request a secret ballot election, the union must submit cards to the NLRB signed by at least 30% of employees indicating their support for a union.[1] Secret ballot elections protect employee free choice and adequately determine if the union legitimately has majority support of the employees. Yet, the General Counsel seeks to scrap this current practice and instead force employers to recognize the union based on signed employee authorization cards through the card check recognition process. In a brief filed in Cemex Construction Materials Pacific LLC, the General Counsel argued that the Board should forgo 50 years of precedent by reverting to the Joy Silk doctrine.

What is the Joy Silk Doctrine?

The Joy Silk doctrine comes after a 1949 NLRB decision. Under Joy Silk, an employer faced with a union demand for recognition had to recognize the union unless it had a good faith doubt as to majority status in the group the union seeks to represent. In the absence of good faith doubt, the employer could not insist on a secret ballot election. If the employer failed to recognize the union without good faith doubt as to the union’s majority status, the Board could issue an order forcing the employer to recognize and bargain with the union. The Joy Silk doctrine created a de facto card check recognition process, whereby a union could become the bargaining representative for a group of employees without going through a secret ballot election.

The U.S. Supreme Court scrapped this doctrine over 50 years ago in NLRB v. Gissel Packing Co. In doing so, the Board may now only issue bargaining orders where an employer’s unfair labor practices are so severe and pervasive as to make a fair election unlikely or impossible (known as the Gissel bargaining order).

For good faith doubt under Joy Silk, the burden of proof rested with the employer to demonstrate evidence to support the claim of good faith doubt; otherwise, the Board’s General Counsel must demonstrate that the employer committed unfair labor practices. Typically such evidence would bear on the validity of the union’s procurement of authorization cards from the employees, evidence of supervisory assistance in the union’s campaign, and/or questions about the scope of the union’s representation. Notably, the Joy Silk framework does not clearly define the parameters of “good faith doubt.”[2] Furthermore, employers seeking to uncover evidence in support of a good faith doubt face challenges as they are prohibited from questioning employees about their union activity.

Why Does the General Counsel Want to Revert to Joy Silk?

According to the General Counsel, “Joy Silk is logically superior to current Board law’s ability to deter election interference,” and the Board should revert to the Joy Silk doctrine because “[i]t directly disincentivizes an employer from engaging in unfair labor practices during organizing campaigns to avoid a bargaining obligation, as doing so will typically result in the imposition of a bargaining order.” Significantly, the General Counsel’s brief argues that

“[T]he Board may determine that a bargaining order should issue if the circumstances demonstrate a lack of good faith doubt even absent unfair labor practices, such as due to testimony or internal documentary evidence revealing the employer’s purpose at the time of its refusal to bargain, the legitimacy of the employer’s proffered reasons for refusing to bargain, or its failure to offer any explanation. This would include situations in which the employer’s reason for refusing to bargain is to gain time in order to persuade employees to change their minds, even using what would otherwise be lawful persuasion.

Important Takeaways

This is only the General Counsel seeking to change precedent. However, if the Board agrees with the General Counsel’s position and that action was upheld in the courts, employers would lose the right to insist on secret ballot elections to ensure employees have an opportunity to refrain from union representation if they so choose. The revival of Joy Silk, under the General Counsel’s interpretation, would also prevent employers from communicating with their employees in a non-threatening manner. Secret ballot elections provide a confidential process to determine if the union has sufficient support of the employees, whereas card check recognition may pressure or coerce workers into signing authorization cards. For now, the General Counsel only seeks to change precedent, and the Board has not yet agreed with the General Counsel’s position. The General Counsel’s interpretation of the NLRA raises serious constitutional and labor issues that would almost certainly be appealed to the U.S. Court of Appeals if adopted by the Board.

FOOTNOTES

[1] 29 U.S.C. § 159(e)(1)

[2] “The determination of good faith depends of course upon the facts of the particular case.” In the Matter of Joy Silk Mills, Inc. and United Textile Workers of America, A.F.L., 85 NLRB 1263, 1276 (1949).

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XII, Number 108
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About this Author

Victoria Ayeni Associate Sheppard, Mullin, Richter & Hampton LLP
Associate

Victoria Ayeni is an associate in the Labor and Employment Practice Group in the firm's San Francisco office.

Victoria’s practice focuses on employment litigation, where she represents employers in a range of civil lawsuits in state and federal courts. She represents employers against claims including harassment, retaliation, discrimination, wrongful termination, intentional infliction of emotional distress, and defamation. Victoria also defends employers against individual wage and hour claims, PAGA representative actions, and class actions....

415-774-2957
Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney
Associate

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

415-774-2934
John Bolesta, Lawyer, Employment, Sheppard Mullin Law Firm
Special Counsel

John S. Bolesta is a Special Counsel in the Labor and Employment Practice Group in the firm's Washington, D.C. office

Areas of Practice

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients in a broad range of industries during union organizing attempts and litigation before the National Labor Relations Board, contract negotiation and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the...

202 747 3375
James Hays, Legal Specialist, management of labor and employment law
Partner

 Mr. Hays is a partner in the Labor & Employment Practice Group in the firm's New York office and co-chairs the firm's Traditional Labor Law Team.

Areas of Practice

Mr. Hays' practice focuses on management labor and employment law. He represents clients in collective bargaining negotiations, labor arbitrations, and all stages of the labor election process, including election campaigns and hearings before the National Labor Relations Board. He also represents clients in employment litigation in federal and state courts, as well as...

212-634-3025
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