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Election Death Knell Unlikely With Move to Ease Union Organizing

April 26, 2022, 9:45 AM

The National Labor Relations Board general counsel’s push to resurrect a legal doctrine allowing unions to represent workers without a formal vote is unlikely to eliminate elections, despite criticism that she’s trying to replace the secret ballot with a “card check” process based on authorization cards signed by workers.

The U.S. Chamber of Commerce called NLRB General Counsel Jennifer Abruzzo’s recent effort a move to force card check organizing on employers and workers. The National Right to Work Legal Defense Foundation said in a press release that the NLRB’s top lawyer wants to mandate card check even when workers want the protection of secret-ballot elections.

But Abruzzo said reviving the standard from the board’s 1949 ruling in Joy Silk Mills—which she asked the board to do earlier this month—“is not a path to card check.” That ruling required employers to recognize and bargain with unions with a majority support from workers, unless they had a good faith reason to doubt that support.

The NLRB commonly held union elections during the 20-year period when the Joy Silk doctrine was in effect, Abruzzo told Bloomberg Law in an April interview.

Reports from that time support Abruzzo’s position. The NLRB held 27,790 union elections from July 1961 to March 1965, while ordering employers to recognize and bargain with unions based on card check 329 times, according to 1965 congressional testimony from then-Labor Secretary W. Willard Wirtz, who served in the Kennedy and Johnson administrations.

Yet changes in labor-management relations over the last half-century could push a larger share of union organizing drives to culminate in card-check recognition rather than elections if the NLRB brings back some form of the Joy Silk doctrine, labor law scholars said.

“The motivation behind this is to obtain an employer’s bargaining obligation in a more timely fashion,” said Michael Duff, a law professor at the University of Wyoming. “The reason that’s become an issue is because of the perception that the election machinery has become so cumbersome as to really frustrate the legitimate desires of employees to form unions.”

Unlike today, there were relatively few attempts in the 1950s and 1960s to press for card-check recognition under Joy Silk because union organizers had confidence that election victories wouldn’t trigger multi-year delays from employers challenging those wins in a cumbersome litigation process, said Duff, a former NLRB lawyer.

Card Check vs. Elections

To trigger an NLRB-administered election, unions must obtain signed cards from at least 30% of workers indicating their desire to be represented by a union. But nothing in the National Labor Relations Act requires an election.

Some states use card check—which entitles unions to recognition based on a majority of workers signing authorization cards—for unionizing in the public sector.

Democratic legislation to amend the NLRA and explicitly use card check in the private sector ran aground during the Obama administration.

In light of Congress not acting, Abruzzo has turned to Joy Silk to force card check on employers, said Glenn Spencer, the Chamber of Commerce’s senior vice president for employment policy. The Obama-era NLRB “made a lot of what we considered radical changes to the law,” yet didn’t attempt to revive that doctrine, he said.

“For this general counsel to go where no one dared tread before under eight years of Obama, it suggests she’s committed to this thing,” Spencer said. “She won’t leave it on the shelf and only use it in 1% of cases.”

But Abruzzo and other Joy Silk proponents say the doctrine is critical to stop employers from prolonging the election process and unlawfully trying to coerce workers to change their minds about their union support.

Employers were accused of unfair labor practices in about 42% of all union election campaigns in 2016 and 2017, according to an analysis of NLRB data by the Economic Policy Institute and University of Oregon. Nearly 20% of election campaigns drew allegations of unlawful terminations, that research showed.

The NLRB’s 1969 abandonment of Joy Silk removed a crucial deterrent from federal labor law, caused a massive increase in unlawful employer conduct, and drove down the number of union elections, said Brian Petruska, general counsel at the LIUNA Mid-Atlantic Regional Organizing Fund. Petruska based his views on his analysis of election and unfair labor practice data he published in a 2017 law review article.

Joy Silk is an anti-ULP doctrine, not an anti-election doctrine,” Petruska told Bloomberg Law. “The current system has destroyed the NLRB election. Elections have been declining steadily for more than 40 years. Joy Silk is the most likely way to reverse that trend.”

Elections ‘the Rule’

Reviving Joy Silk is unlikely to trigger wholesale replacement of elections with card-check recognition, said Daniel Schudroff, a management-side labor lawyer at Jackson Lewis PC.

Elections actually would be a speedier way of getting a union certified because litigation would immediately follow an attempt to unionize through card check, he said.

“The election process would be the rule rather than the exception,” Schudroff said.

Companies still could avoid card-check recognition under a revived Joy Silk standard, said Jerry Hunter, a former NLRB general counsel during the George H.W. Bush administration. Employers can submit what’s known as an RM petition to ask the NLRB for an election when a union claims majority support, he said.

“As long as an employer representative doesn’t review the authorization cards, then an employer could file a petition for an election and make sure to run an aggressive campaign that doesn’t involve any unfair labor practices,” said Hunter, an employer-side attorney with Bryan Cave Leighton Paisner LLP.

Under Joy Silk, union recognition by cards doesn’t require a finding that employers committed other unfair labor practices. But the NLRB reworked the doctrine in its 1966 Aaron Bros. decision to require the general counsel to show the employer committed substantial labor law violations or engaged in bad faith conduct to trigger card-check recognition.

NLRB orders for employers to recognize and bargain with unions, absent unfair labor practices beyond the refusal to bargain without a good faith reason to doubt a union’s majority support, were rare. The board issued orders in just 10 cases over the course of 15 years, according to Wirtz’s 1965 Senate testimony.

Employers could establish that doubt with evidence that unions coerced workers to sign authorization cards, misled workers about the cards’ purpose, signed them instead of the workers, or incorrectly dated the cards, Abruzzo told Bloomberg Law.

“We are about promoting productive labor-management relations,” she said. “If there’s no good faith doubt that a union enjoys majority support, then why shouldn’t there be collective bargaining?” she asked.

—With assistance from Ian Kullgren

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editor responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Melissa B. Robinson at mrobinson@bloomberglaw.com