PUBLICATIONS

NLRB General Counsel Seeks to Limit Secret Ballot Elections in Favor of Union Recognition Based on Card Count

Date   Apr 19, 2022

Executive Summary: On April 11, 2022, the National Labor Relations Board (“NLRB” or the “Board”) General Counsel Jennifer Abruzzo (“Abruzzo”) filed a brief in Cemex Construction Materials Pacific, petitioning the Board to reinstate the Joy Silk doctrine, a Board standard that was rejected more than 50 years ago. Under the Board’s 1949 ruling in Joy Silk Mills, 85 NLRB 1263 (1949), an employer could be compelled to recognize and bargain with a union upon a showing of majority support. An employer could only refuse to bargain and insist on an election if it could prove it had a “good-faith” doubt of the union’s majority status. According to Abruzzo, this standard includes preventing an employer from expressing its views on unionizing after a union alleges a majority. Abruzzo’s request to revive Joy Silk signals an attempt to strip employers of their right to confirm a union’s alleged majority through a secret ballot election and to render secret ballot elections a thing of the past.

Under Joy Silk, the General Counsel could present virtually any evidence to rebut an employer’s evidence of good-faith doubt. Any unfair labor practice by the employer was sufficient to prove its lack of good-faith doubt in the union’s majority status. As a result, the Board forced bargaining on the employer even if its unfair labor practice was minimal or unrelated to organizing efforts. Prior to the abandonment of Joy Silk, the Board raised the burden required to establish an employer’s lack of good-faith doubt. Aaron Bros. Co. of California. 158 NLRB 1077 (1966). Following its decision in Aaron Bros. Co. of California, the Board only issued a bargaining order if the General Counsel proved the employer committed “substantial unfair labor practices calculated to dissipate union support.” Id.

Under Abruzzo’s application of Joy Silk, employers would be required to prove their good-faith doubt of the union’s majority status. Abruzzo also asks the Board to repeal its “substantial unfair labor practice” standard. Instead, she requests the Board accept any proffered evidence as proof of an employer’s lack of good-faith doubt. This includes lawful acts of expression or persuasion by the employer, which are already limited by the National Labor Relations Act. Notably, unions do not have prohibitions on what they can promise to employees while convincing them to sign an authorization card. Abruzzo’s extreme application of Joy Silk could force many employers to automatically recognize a union upon its claim of majority status and could force employees to accept union representation even if they do not want it.

Current Standard

Currently, if a union has signed authorization cards from a majority of employees, it can request the employer to voluntarily recognize it. If the union requests voluntary recognition, an employer can refuse the request or begin the bargaining process. Therefore, if the employer rejects a union’s claim of majority status, it can then insist upon a secret ballot after a period during which it has the opportunity to express its position on the union’s organizing efforts and educate its employees about unionization. Under the standard established by the Supreme Court in N.L.R.B v. Gissel Packing Co., 395 U.S. 575 (1969), an employer can reject a union’s demand for recognition and, instead, insist upon a secret ballot election to resolve the ultimate question concerning the representation of its employees. The NLRB may only require an employer to bargain in the absence of a certified adverse election result where the union possesses evidence of majority support and the employer has committed serious unfair labor practices that make a free and fair election unlikely, caused an election to be set aside, or undermined a union’s majority status.

What Effect Could Reinstatement of the Joy Silk Doctrine Have on Employers?

Abruzzo claims she is simplifying the unionization process. In reality, she is obliterating the process. Unions use all types of tactics to convince employees to sign authorization cards and often fail to inform employees that the cards are official documents that could be filed with the NLRB. Under a revived Joy Silk doctrine, employers will be required to bargain with a union without an election. An employer will only be allowed to refuse to bargain if it can establish a “good-faith” doubt as to the union’s majority status, a difficult task when employers are prohibited from asking employees whether they support unionization. A return to Joy Silk would restrict the employer’s ability to express its opinion on the union or unionizing efforts in general. Abruzzo’s position also fails to acknowledge that employees may change their minds between the time they sign an authorization card and the time of an election. In short, a revival of Joy Silk would limit an employer’s right to communicate with its employees on the realities of unionization and would limit the employer’s ability to confirm the union’s alleged majority through an election. 

Employers’ Bottom Line: The NLRB has not issued a decision in Cemex Construction; thus, the current standard still applies. If the Board accepts the General Counsel’s argument and reinstates the Joy Silk doctrine, that decision likely would be challenged in court. We will keep you informed on the status of this issue. If you have any questions regarding this Alert, please contact the authors, Jacki Thompson, partner in our Washington, DC office at jthompson@fordharrison.com, and Roy Smith, associate in our St. Louis office at roysmith@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.