NLRB Seeks to Remove Employer Option of Elections to Unionize - American Society of Employers - Michael Burns

NLRB Seeks to Remove Employer Option of Elections to Unionize

The National Labor Relations Board (NLRB) is working to take out the impediment of organizing elections to further its pro-labor agenda. Holding a secret ballot election is a fundamental step under the National Labor Relations Act in determining whether workers want a union or not.

Early in April of this year the NLRB General Counsel filed a brief on a particular case (CEMEX) with the NLRB to revive a very pro-labor doctrine that has not been in effect for five decades. This doctrine was last heard from in 1975 when the NLRB abandoned it in favor of the position that holding an election should be automatic rather than basing union recognition upon signed authorization cards obtained without the controls or oversite of the Agency and without an election to certify that determination.

The long dormant case the NLRB General Counsel is trying to resurrect is called the Joy Silk. Joy Silk was a case decided back in 1949 and is based upon interpretation of Section 9 (a) of the NLRA.  In the Joy Silk case it was determined that an employer had committed such egregious violations of the NLRA before and during the union organizing campaign that the Board could dispense with the election given that the level of employer actions had so poisoned the environment around the union campaign that a fair election could not be held. Therefore, in that case the NLRB forced recognition of the union on the employer and the workers without the election.

No less than the U.S. Supreme Court ruled that employers may insist on a union election regardless of the circumstances around a union campaign.

But Joy Silk continues to live with the NLRB now considering that no union election may be necessary if the employer cannot prove that it has a “good faith doubt” that the union has the support of most of the workers. This effectively adopts “de facto card check” and gives the NLRB the power to overrule an election request simply because they do not believe the employer has that reasonable good faith doubt. This also effectively adopts, by NLRB case ruling, what the Biden Administration cannot pass by law. Its PRO act.

For some years now the pro-labor Democrats have been trying to pass a new labor law called the Protecting the Right to Organize Act (PRO). This law will do several things intended to make it much easier for a union to get recognition to represent workers in several ways. One primary part of the PRO Act was the imposition of de facto card check. Card check is when the NLRB recognizes a union from the fact that most workers sign union authorization cards. Fortunately, even with a slim Democratic majority in Congress, the PRO Act is stalled. But that is not stopping the Biden Administration from implementing the pro labor aspects of the legislation through administrative means rather than an outright change to the law.

One criterion that Joy Silk relies upon in addition to the union having a majority of the authorization cards signed is also the presence of unfair labor practices committed by the employer during the union campaign. As stated above this doctrine applied only when serious infractions by the employer occurred – not so much today. What the NLRB may lack in serious infractions it may make up in numbers of alleged infractions. Today employers in the midst of a union organizing campaign are getting hit with large numbers of alleged unfair labor practice charges by union organizers. These allegations are taken to the NLRB for hearing on whether the employer or its management did anything illegal. If the charges reach a critical mass with the NLRB, they have the authority under Joy Silk to dispense with the election and give recognition to the union to then bargain regardless of whether the workers involved really want a union. The employer and employees get stuck with a union, and it is not easy to remove one once they are put in place.

But even with the NLRB adopting this old doctrine, and despite the law being against it, its end game may be just to intimidate employers into being much more cautious during the organizing campaign to avoid an unfair labor practice charges in order protect the employer against losing without an election. If the employer does not aggressively oppose the union when an election goes against the employer, its only assertion to challenge the card check loss is to for the employer to question the size of the bargaining unit being organized. This is a difficult last stand position to be in.

Fortunately, the NLRA is behind employers.  Despite the present heavily pro labor make-up of the NLRB and its administration, the NLRA clearly states a process for conducting elections for certification of union bargaining units. NLRB precedent and court case law recognizes secret ballot elections as the “preferred” method of determining if a union has majority support. Unfortunately, the NLRA has some areas that give the NLRB power to interpret it differently when it sees fit, and that means the employer must then go to a federal court to correct the misapplication of NLRA law.

Non-union employers should do risk assessment of their workforce to determine whether they are in a good position to confront a union organizing drive. ASE recommends employers train their first line supervisors, so they understand their role in maintaining a union free organization. View all upcoming Principles and Practices of Supervision courses here.

Employers should regularly be talking to their employees, and listening, to learn if there are any employee relations problems that may morph into union activism. Membership in ASE gives members access to resources and tools to enhance employee relations and avoid the issues that might lead to a union organizing drive in their midst.


Sources: Law 360 NLRB GC’s ‘Joy Silk’ Revival Polarizing Labor World (April 2022)

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