It is no secret that Jennifer Abruzzo, general counsel for the National Labor Relations Board (NLRB), has embarked on an aggressive, pro-labor agenda.¹

Among other things, she is looking for ways to streamline the organizing process for unions. With this in mind, G.C. Abruzzo has expressed her desire for the NLRB to revive what is known as the “Joy Silk doctrine.”²

Context for the Joy Silk Doctrine

At the outset, it is important to keep in mind a key concept in labor law: A union cannot act as the exclusive representative of a group of employees unless there is objective evidence that a majority of those employees support the union.

Historically, the most common ways of proving majority support are through a NLRB-run secret ballot election or, alternatively, by the union presenting the employer with authorization cards (i.e., membership cards) signed by a majority of the employees.

Employers tend to prefer the NLRB-run election alternative because it gives them the opportunity to challenge the appropriateness of the sought-after bargaining unit and, if warranted, time to campaign against the union.

Conversely, unions tend to favor the card check alternative because it presents fewer procedural pitfalls and often foreclosures the employer from running an anti-union campaign.

The current state of the law is that an employer can, when faced with a union’s demand for recognition that is based on authorization cards, simply refuse to acknowledge the cards and insist on a NLRB-run election. That was not always the case.

The Fascinating History of the Joy Silk Doctrine

Back in 1949, the NLRB issued its decision in Joy Silk Mills, Inc. The case arose in the context of a union’s demand that Joy Silk recognize it as the exclusive bargaining agent for its employees.

The union offered authorization cards as objective evidence that it enjoyed the support of a majority of the employees. The employer rejected the authorization cards and insisted on a NLRB election. The union lost the election and filed unfair labor practice charges, alleging that the employer’s conduct leading up to the election tainted the results.

In finding that the employer violated National Labor Relations Act section 8(a)(5), the NLRB agreed that the main reason the employer rejected the authorization cards was to buy time to run an anti-union campaign prior to the election.

The following rule emerged from Joy Silk:

• An employer could refuse to bargain with a union that claimed majority support based on authorization cards only if the employer had a “good faith doubt” about the union’s claimed majority status.

• Evidence of an employer’s good faith doubt will vary with the circumstances but typically includes such things as a doubt regarding the authenticity of the authorization cards or independent knowledge that the union’s claim of majority support was false.

In Joy Silk, the NLRB found that the employer’s rejection of the authorization cards was not motivated by a legitimatedoubt as to the union’s majority support, “but rather by a desire to gain time in which to undermine the union” prior to an election.³

Joy Silk placed the burden on the employer to show that it had a good faith doubt, based on objective evidence, regarding the union’s claim of majority support.

A Shift: Aaron Brothers

That changed in a case called Aaron Brothers.⁴ In Aaron Brothers, the NLRB modified the Joy Silk doctrine by shifting the evidentiary burden to the general counsel to demonstrate that the employer was operating in bad faith in rejecting the authorization cards.

Whereas Joy Silk placed the burden of proof on the employer to show that it had a good faith reason for rejecting the authorization cards, Aaron Brothers shifted this burden of proof to the general counsel to show that the employer rejected the cards in bad faith.

Regardless of who had the burden of proof, the Joy Silk doctrine at that point in time still recognized that the employer’s good faith, or lack thereof, was a key factor.

The Death of Joy Silk: Manoli, Gissel Packing, and Linden Lumber

This is where things got interesting. In March 1969, the U.S. Supreme Court held oral argument in a bargaining order case commonly known as Gissel Packing.⁵

During oral argument, the attorney for the NLRB, Dominick Manoli, misrepresented the NLRB’s position on the Joy Silk doctrine. During the argument, Manoli incorrectly stated to the court that it was the NLRB’s position that an employer could simply reject authorization cards without any reference whatsoever to whether it was acting in good or bad faith in doing so.

Stated differently, Manoli stated that the “good faith belief” element from the Joy Silk doctrine was no longer relevant.⁶

The abandonment of the good or bad faith test was confirmed five years later in a case known as Linden Lumber.⁷ In that case, the court confirmed that, when confronted with authorization cards purportedly signed by a majority of employees, an employer simply can reject the cards and insist on an election without any regard as to whether the employer was acting in good or bad faith.

Liden Lumber confirmed the death of the Joy Silk doctrine. After Liden Lumber, an employer could refuse to even consider the authorization cards and insist on a NLRB election – without having to offer any reason for doing so. That is the current state of the law.

The General Counsel Hopes to Revive the Joy Silk Doctrine

As was mentioned previously, G.C. Abruzzo is looking for a vehicle to revive the original Joy Silk doctrine.

The case to keep an eye on is Cemex Construction Materials Pacific, LLC.⁸ In that case, the general counsel filed a brief calling for the reversal of Linden Lumber and reinstatement of the Joy Silk doctrine. That case currently is pending before the NLRB.

Cards versus Ballots

Obviously, union recognition based on authorization cards streamlines the organizing process for unions. The authorization card approach also favors unions in that it typically deprives employers of any opportunity to run a campaign (for many employers, being confronted with authorizations cards is the first time they learn of the union’s organizing efforts).

The practical effect of reviving this Joy Silk precedent from 1949 would be to make organizing easier for unions by eliminating NLRB elections in many cases.

How one feels about this development may depend on how one views the purpose of the National Labor Relations Act itself. If one believes, as G.C. ​Abruzzo apparently does, that the purpose of the Act is to promote union organizing, then revival of the Joy Silk doctrine makes sense.

If, however, one believes that a key aspect of the Act is to promote employee free choice in the selection of a bargaining representative, then the Joy Silk doctrine is a step backward because it reduces the opportunity for secret ballot elections.

As the NLRB consistently has recognized in other contexts, secret ballot elections are the most reliable way for determining whether a majority of employees support the union. In the sanctity of the voting booth, employees can vote their conscience.

Authorization cards, on the other hand, leave open more opportunity for peer pressure and coercion.

The revival of a doctrine from 1949 may not be the best thing for employees who value the right to express their union preferences under the protection of a NLRB conducted secret ballot election. Under Joy Silk, the right to vote by secret ballot could be significantly curtailed.

This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ See Peter Albrecht, “Policy Oscillation is In Full Swing at the National Labor Relations Board,” State Bar of Wisconsin Labor & Employment Law Blog, March 23, 2022.

² ​Joy Silk Mills, Inc, 85 NLRB 1263 (1949). See General Counsel Memo 21-04, “Mandatory Submissions to Advice” issued Aug. 12, 2021.

³ Id.

⁴ Aaron Brothers Co. of California, 158 NLRB 1077 (1966).

⁵ NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918 (1969).

⁶ An interesting analysis of this turn of events can be found in Brandon Magner, “The Scandalous Story of How Joy Silk Disappeared from Labor Law,” Labor Law Lite, Aug. 16, 2021.

⁷ Linden Lumber Div., Summer & Co. v. NLRB, 95 S.Ct. 429 (1974).

⁸ Cemex Construction Materials Pacific, LLC, 28-CA-230115.