June 25, 2022

Volume XII, Number 176

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June 24, 2022

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June 23, 2022

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NLRB General Counsel Urges The NLRB To Revive The Joy Silk Doctrine For Union Elections

On April 11, 2022, the National Labor Relations Board’s General Counsel urged the Board to revive the long-abandoned Joy Silk doctrine, which has not been in effect in nearly 50 fifty years.

Under the Joy Silk doctrine, under certain circumstances, employers faced with a demand for recognition by a union may be required to recognize and bargain with a union even in the absence of a union election victory unless the employer has a “good-faith doubt” that a majority of workers support the union.

The Board formally abandoned the Joy Silk standard in 1975, ruling that employers do not violate the National Labor Relations Act by insisting on an election rather than grant recognition based on the union’s proffer of a purported card majority.  Indeed, under current Board precedent, an employer has the right to insist on an election, and an employer may only be forced to recognize and bargain with a union without an election if the Board determines a fair election is highly unlikely or impossible because of unfair labor practices during the pre-election period.

Though the Joy Silk doctrine has been abandoned for almost 50 years, the General Counsel has argued that a return to the Joy Silk standard is necessary because the current standard has led to an increase in unfair labor practices during the pre-election period with few consequences for an employer that wins a union election.  While this argument is highly debatable, a return to Joy Silk could mark a significant shift in U.S. labor law.  The practical effect of what the General Counsel is seeking is unclear, and a good number of questions remain about how a Joy Silk doctrine would be implemented under the current National Labor Relations Act.  In light of this significant uncertainty, employers interested in these issues are strongly encouraged to consult with qualified labor counsel now and to continue to monitor developments.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 119
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About this Author

Ronald Meisburg Special Counsel Washington DC labor management relations law and policy
Special Counsel

Ronald’s practice focuses on labor management relations law and policy.

Ronald is a former National Labor Relations Board member and general counsel.

Prior to joining the firm, Ronald co-chaired the labor-management relations practice at an international law firm. Over the course of his 40-year career, which began with the Office of the Solicitor of the US Department of Labor, Ronald has handled matters arising under federal labor and employment law in complex business transactions before federal agencies and courts.

Ronald joined the NLRB in 2004, following a recess...

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Robert T. Dumbacher Labor & Employment Attorney Hunton Andrews Kurth Atlanta, GA
Partner

Bob’s practice focuses on representing and advising employers in complex labor relations and employment planning and disputes, including trade secrets/non-compete disputes and wage and hour issues.

Bob has obtained numerous positive results in litigated matters, including large-scale labor relations matters and restrictive covenants disputes, one of which was the groundbreaking relief under Georgia’s recently-passed Restrictive Covenants Act. Bob believes it is important for employers to proactively think about how to avoid or mitigate the risks of litigation and works closely with...

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Tyler S. Laughinghouse Employment Lawyer Hunton AK
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Tyler’s practice focuses on labor and employment law, including counseling, litigation and regulatory advice.

Tyler has developed an extensive wage and hour practice, defending clients in nationwide class action lawsuits under the FLSA and state overtime laws. He also has significant experience handling employment discrimination cases, reviewing and drafting employee applications and handbooks, and counseling employers on their obligations under various state and federal employment and traditional labor laws. Tyler also has experience with...

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