NLRB General Counsel Calls for Expansion of Card Verification to Remove Barriers to Organizing | Ballard Spahr LLP

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 on the Council to reinstate the 1949 Joy Silk Mills decision – which has not been applied since the late 1960s. Below Joy Silk, employers may be required to recognize and negotiate with a group of workers before an election when the union provides proof of authorization cards signed by the majority of employees in the proposed unit (known as card verification), to ​unless they have clear evidence against the band’s majority support. Currently, employers can demand a Board-supervised election when they have evidence that a union wishes to represent their workforce. A return to the Joy Silk standard would require employers to demonstrate a “good faith doubt” about the majority status of the union to insist on an election.

good faith under Joy Silk required a review of “all relevant circumstances, including any unlawful conduct by the employer, the sequence of events and the time between the refusal and the unlawful conduct”. The Advocate General’s brief presents examples of evidence that could demonstrate a lack of good faith, including:

testimony or internal documentary evidence revealing the intention of the employer at the time of its refusal to negotiate, the legitimacy of the reasons given by the employer for refusing to negotiate or its failure to provide an explanation. This would include situations where the employer’s reason for refusing to negotiate is to buy time in order to persuade employees to change their minds, even using what would otherwise be legal persuasion. In addition, where the employer has committed unfair labor practices, the Board may consider all of the circumstances, including the identity of the officer who committed the violations, the nature of the violations and the timing of the violations, but in any event, such violations will reduce the likelihood that the employer will fulfill its obligation to demonstrate a doubt in good faith.

Under the standard proposed by the Advocate General, if the Board determined that an employer had no doubts in good faith, 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 memoir argues that Joy Silk should be reinstated “prospectively, as the Commission’s current recovery program has failed to deter unfair labor practices during union organizing drives and to ensure free and fair elections”. The argument echoes Abruzzo’s earlier public statements, and his Tweets from September 2021 where she summarized the facts of the Joy Silk decision and said it “will consider whether a return to Joy Silk is necessary to fulfill the [NLRA’s] assignment. If a charge is laid alleging that an employer refuses to bargain without doubting in good faith the majority status of a union, [the General Counsel will] consider asking the Board to take over the application of Joy Silk. The brief follows the General Counsel’s memorandum that “captive hearing” meetings violate federal labor law, as we reported here.

If the approach proposed by the Advocate General is adopted by the NLRB, a return to the Joy Silk This standard would represent a significant departure from decades of Commission law and would have a direct and immediate bearing on how employers respond to employees wishing to unionize, including what employers can do when faced with a union claiming to represent the majority of employees in the proposed unit. Ballard Spahr’s Labor and Employment Group regularly advises employers on how to navigate organizing drives and representation elections, and stands ready to help employers if the law changes.

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