Employers across the country may, in the near future, face a unionized 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 (“Board”).  However, the Board’s General Counsel, Jennifer Abruzzo, seeks to upend this current practice and potentially force employer to recognize the union based on signed employee authorization 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, GC Abruzzo has made it clear that she plans to petition the Board to change current precedent to revive the Joy Silk Mills doctrine, which derives its name from a 1949 case and was abandoned by the Board in the 1960s.

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.  Without 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 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 labor 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 the GC to demonstrate that the employer had committed unfair labor practices.  This evidence could vary, but would be substantially limited to legitimate questions of fraud or coercion in the procurement of the authorization 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 (e.g. 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 organizing 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 organizers 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 unionization, to the extent the General Counsel recognize such a right at all, it seems clear that under the revived Joy Silk Mills framework this would not justify a refusal to recognize a union claiming majority support.

The revival of Joy Silk should send chills down the spines of employers, knowing that their employees could unionize 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 Board law to effectively authorize 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 are well-advised to consult with competent labor counsel to ensure compliance with the ever-changing labor law.  For additional information, please contact Andrew M. MacDonald or the Fox attorney with whom you regularly work.