Earlier this week, in an ongoing case between Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters, NLRB General Counsel Jennifer Abruzzo filed a brief calling for the Board to reinstate the 1949 Joy Silk Mills decision – which has not been enforced since the late 1960s.  Under Joy Silk, employers may be required to recognize and bargain with a labor group prior to an election when the union provides evidence of authorization cards signed by a majority of the employees in the proposed unit (known as a card check), unless they have clear evidence against the group’s majority support.  Currently, employers may insist upon an election overseen by the Board when presented with evidence that a union wishes to represent its workforce.  A return to the Joy Silk standard would require employers to demonstrate a “good faith doubt” as to the union’s majority status to insist on an election.

Good faith under Joy Silk required a consideration of “all relevant circumstances, including any unlawful employer conduct, the sequence of events, and the time lapse between the refusal and the unlawful conduct.” The General Counsel’s brief sets forth examples of evidence that might demonstrate a lack of good faith, including:

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. In addition, where the employer has committed unfair labor practices, the Board may consider all circumstances, including the identity of the agent who committed the violations, the nature of the violations, and the timing of the violations, but in any event, such violations will decrease the likelihood that the employer will meet its burden to show good faith doubt.

Under the General Counsel’s proposed standard, if the Board determined an employer lacked a good faith doubt, it could order the employer to recognize and bargain with the union. This is true even in the absence of an unfair labor practice.

The brief argues that Joy Silk should be reinstated “prospectively, because the Board’s current remedial scheme has failed to deter unfair labor practices during union organizing drives and provide for free and fair elections.”  The argument carries out Abruzzo’s prior public statements, and her September 2021 tweets where she summarized the facts of the Joy Silk decision and stated she “will examine whether a return to Joy Silk is necessary to fulfill the [NLRA’s] mission. If a charge is filed alleging an employer is refusing to bargain without a good faith doubt of a union’s majority status, [the General Counsel will] consider asking the Board to resume applying Joy Silk.”  The brief comes on the heels of the General Counsel’s memorandum that “captive audience” meetings violate federal labor law, as we reported here.

If the General Counsel’s proposed approach is adopted by the NLRB, a return to the Joy Silk standard would represent a significant departure from decades of Board law and would directly and immediately impact how employers respond to employees wishing to unionize, including what employers can do when faced with a union claiming to represent a majority of employees in the proposed unit. Ballard Spahr’s Labor and Employment Group advises employers regularly on how to navigate union organizing campaigns and representation elections, and is ready to assist employers should the law change.