Joy Silk revival
In the near future, employers across the country may face a unionised workforce, even though their employees are denied the opportunity to vote in a secret ballot election. Under current law, an employer presented with evidence that a union wishes to represent its employees may insist upon an election overseen by the National Labor Relations Board (NLBR). However, NLBR General Counsel Jennifer Abruzzo seeks to upend this current practice and potentially force employers to recognise the union based on signed employee authorisation cards instead.
In public statements, tweets and comments to the recent Midwinter Meeting of the American Bar Association's Section on Labor and Employment Law, Practice and Procedure Committee, Abruzzo has made it clear that she plans to petition the NLRB to change current precedent to revive the Joy Silk Mills doctrine, which derives its name from a 1949 case and was abandoned by the NLBR in the 1960s.
Under Joy Silk, an employer faced with a union demand for recognition had to recognise the union unless it had a good faith doubt as to majority status in the group the union seeks to represent. Without good faith doubt, the employer could not insist on a secret ballot election. If the employer failed to recognise the union without good faith doubt as to the union's majority status, the NLRB could issue an order forcing the employer to recognise and bargain with the union.
The Joy Silk framework begs the question – what is good faith doubt? Can it be subjective on the part of management? Must it be based on some form of evidence? Does proving lack of good faith about require the employer to commit unfair labour practices?
While it is unclear now because Joy Silk has not yet been reinstated, good faith doubt under Joy Silk required the employer to demonstrate evidence to support the claim of good faith doubt or Abruzzo to demonstrate that the employer had committed unfair labour practices. This evidence could vary, but would be substantially limited to legitimate questions of fraud or coercion in the procurement of the authorisation cards by the union from the employees, evidence of supervisory assistance in the union's campaign, or other questions about the scope of the union (eg, the union presents 25 cards, but the employer legitimately believes that there are 100 employees that should covered by the union's potential representation).
In many scenarios, ambushed employers who learn of a union that is organising a campaign only when presented with the union's demand for recognition will not be able to find evidence for a good faith doubt of the union's claim for majority support. Moreover, an employer seeking to uncover such evidence must contend with existing prohibitions against "interrogating" employees about their union activity, whereas unions are free to say virtually anything to employees to secure their support. Employees can be subject to pressure from union organisers and fellow employees to sign cards, which raises questions about whether signed cards reflect the uncoerced desire of employees.
As for the right of the employer to communicate its views regarding unionisation, to the extent Abruzzo recognises such a right at all, it seems clear that under the revived Joy Silk Mills framework this would not justify a refusal to recognise a union claiming majority support.
The revival of Joy Silk should worry employers, knowing that their employees could unionise without advance notice or the opportunity to communicate with their employees in a non-threatening manner. Unions already have the means to challenge what they consider to be improper employer conduct leading up to elections; they do not need a change in NLBR law to effectively authorise government-sponsored card check procedures based on the possible threat that employers may exercise their right to free speech with their employees guaranteed by the National Labor Relations Act.
Employers should consult with competent labour counsel to ensure compliance with the ever-changing labour law.
For further information on this topic please contact Andrew M MacDonald at Fox Rothschild LLP by telephone (+1 215 299 2839) or email ([email protected]). The Fox Rothschild LLP website can be accessed at www.foxrothschild.com.