National Labor Relations Board General Counsel Jennifer Abruzzo is looking to simplify the union process by a reviving a legal standard that fell out of use 50 years ago.
Joy Silk would allow the board to recognize a union if a majority of workers fill out cards of support—meaning unions wouldn’t need to win formal elections in most cases.
Supporters of the approach say it would deter employers from interfering with elections, while business groups have said it’s an overreach that imperils companies’ rights to conduct business their way.
1) How would it work without elections?
The initial steps to forming a union wouldn’t be much different than they are now. Today, organizers begin by canvassing workers to sign cards of support, typically wait for a large majority—usually around 70%—before they approach the employer for voluntary recognition.
After the union lays its hand on the table, the employer generally has two options: agree to bargain, or refuse.
That’s where the change comes in.
Currently, employers can force an election by simply refusing to recognize the union. Under Joy Silk, a company would need to demonstrate “good faith doubt” to the NLRB about the union’s majority—basically, that organizers are lying about having more than 50%.
The NLRB would then investigate. If the board disagrees with the employer, it would order the employer to bargain with the new union. If it found the allegations plausible, it could order a secret-ballot election.
2) What’s wrong with voting?
While minimizing elections might seem strange, supporters of Joy Silk say that workers are robbed of their democratic voice because employers commit so many unfair labor practices around elections. For example, the NLRB ordered a second election at the Amazon warehouse in Bessemer, Ala., citing worker intimidation.
Abruzzo said in an interview with Bloomberg Law that Joy Silk would reduce the number of charges filed to the board and promote labor-management stability.
Joy Silk supporters also note that the NLRB can’t issue fines or penalties, making it hard to hold bad actors accountable. In theory, Joy Silk would deter companies from breaking the law to avoid a union.
Safe to say not everyone shares that view. Business advocates have called Abruzzo’s Joy Silk memo a thinly veiled attempt to help organized labor by placing more burden on the employer.
3) How are unfair labor practice charges handled now?
Compared to the Joy Silk standard, employers currently are granted a much higher bar to be on the hook for unfair labor practices. To overturn an election under current precedent, the NLRB must prove an employer’s skullduggery made a fair election highly unlikely or impossible.
In rare cases, an employer may be ordered to bargain with a union immediately. These are called Gissel bargaining orders, and are reserved for situations where an employer’s conduct was so egregious that the NLRB believes the whole election process is compromised.
4) What’s next for Joy Silk?
To make Joy Silk a reality, Abruzzo would need to convince the Democratic majority on the NLRB to change the standard—a prospect that’s far from certain. Her office recently filed a brief in Cemex Construction Materials Pacific, identifying the case as a vehicle. Now, it’s up to the board.