With Congress failing to make the organizing process easier for unions, the NLRB General Counsel Jennifer Abruzzo is now asking the Board to require employers to recognize unions without a secret ballot election.

As foreshadowed by her August 2021 memo on Mandatory Submissions to Advice, in a brief filed in Cemex Construction Materials Pacific LLC, the Office of the NLRB General Counsel argued that the Board should reinstate an antiquated Board standard that was rejected more than 50 years (since 1969)—the Joy Silk doctrine—that would require employers to recognize and bargain with a union if it is presented with signed authorization cards from a majority of workers.

Under this old standard, the burden of proof rests with the employer to demonstrate that it has a “good faith doubt” as to the union’s majority status where the union presents evidence of a card majority and the employer refuses to recognize the union. If the employer was unable to satisfy this “good faith doubt” test, the Board would order the employer to recognize and bargain with the union without a secret ballot election. According to the General Counsel, the rationale for reverting to the Joy Silk doctrine is that the “Board’s current remedial scheme has failed to deter unfair labor practices during union organizing drives and provide for free and fair elections.” While the Board may issue bargaining orders against employers whose unfair labor practices are so severe and pervasive as to make a fair election unlikely or impossible (known as a Gissel bargaining order), this is an extraordinary remedy that is only granted in the rarest of circumstances.

As such, the General Counsel is requesting the Board return to its “good faith doubt” test under Joy Silk, without requiring a showing of “substantial unfair labor practices” to demonstrate the employer’s lack of good faith in questioning a union’s card majority. Under the General Counsel’s proposed paradigm, an employer may still ask a union to respond to its good faith concerns about the authenticity of card signatures or the appropriate scope of the bargaining unit. However, an employer “may not simply refuse to respond or object to authorization cards as a method of demonstrating majority status.”

Highlighting the magnitude of the General Counsel’s position, the brief explicitly explained its understanding of the Joy Silk card check doctrine whereby

[T]he Board may determine that a bargaining order should issue if the circumstances demonstrate a lack of good faith doubt even absent unfair labor practices, such as due to 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.

Takeaways

This is only the General Counsel seeking to change precedent.  However, if the Board agrees with the General Counsel’s position and that action was upheld in the courts (both doubtful at this time), employers would lose the right to insist on a secret ballot election to ensure its employees have an opportunity to exercise their statutory right to refrain from union representation if they so choose. This would greatly facilitate the ease with which unions assert representative status over employees and likely encourage unions to seek to organize more workplaces.

As always, we will keep you up to date on the latest in this developing story.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Michael Lebowich Michael Lebowich

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional…

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He also has significant experience in representation and unfair labor practice matters before the National Labor Relations Board.

His broad employment law experience includes handling of race, national origin, gender and other discrimination matters in state and federal court. A significant amount of his practice is devoted to counseling clients regarding the application and practical impact of the full range of employment laws that affect our clients, including all local, state and federal employment discrimination statutes, the Fair Labor Standards Act, the Family and Medical Leave Act, and state labor laws.

Michael has substantial experience in a wide variety of industries, including entertainment, broadcasting, newspaper publishing and delivery, utilities and lodging. He represents such clients as The New York Times, BuzzFeed, ABC, the New York City Ballet, PPL, Pacific Gas & Electric, Host Hotels and Resorts, and The Broadway League (and many of its theater owner and producing members).  Michael also has significant public sector experience representing, among others, the City of New York and the Metropolitan Transportation Authority.

Michael is a frequent guest lecturer at Columbia Business School, the Cornell School of Hotel Administration, the New York University Tisch School for Hospitality, Tourism and Sports Management, and is an advisory board member of the Cornell Institute for Hospitality Labor and Employment Relations.

Photo of Elizabeth Dailey Elizabeth Dailey

Elizabeth Ann Dailey is an associate in the Labor & Employment Law Department. Elizabeth assists clients in a variety of labor and employment matters, including motion practice, administrative proceedings, internal investigations, labor-management relations, and claims of employment discrimination. As part of her labor-management…

Elizabeth Ann Dailey is an associate in the Labor & Employment Law Department. Elizabeth assists clients in a variety of labor and employment matters, including motion practice, administrative proceedings, internal investigations, labor-management relations, and claims of employment discrimination. As part of her labor-management relations practice, Elizabeth has assisted in representation proceedings before the NLRB and has experience responding to unfair labor practice charges, conducting labor-related business risk assessments, and assisting with collective bargaining negotiations.

Elizabeth frequently represents clients across a variety of industries and sectors, including educational institutions, sports entities, news and media organizations, entertainment companies, healthcare institutions, and real estate companies.

Elizabeth earned her J.D. from the University of Pennsylvania Law School, where she completed a certificate program in business management from The Wharton School. While attending Penn Law, Elizabeth interned with the National Labor Relations Board Region 2 where she conducted investigations into unfair labor practices and recommended case dispositions to the Regional Director.