And So The Pendulum Swings: NLRB Revives Joy Silk From The Ashes

Mathew Moldawer
Mathew Moldawer

The NLRB’s democratic majority struck a big win for unions by reviving the precedent set in the 1949 NLRB decision, In re Joy Silk Mills, Inc., 85 N.L.R.B. 1263 (1949).   Using Cemex Construction Materials Pacific, LLC as their torpedo, the NLRB has inflicted a blow to employers facing unionization efforts.

The employees at issue were approximately 366 ready-mix cement truck drivers and driver trainers.  The drivers and trainers showed support for a union in their cards, with over 200 employees in support of unionization.  Later, however, an election showed the employees voted against unionization by a count of 179 – 166.  The General Counsel and the union alleged the employer engaged in “extensive unlawful and otherwise coercive conduct before, during, and after the election,” and recommended setting aside the election, and permitting the union several special access remedies prior to the rerun election.  The judge set aside of the election but did not approve a remedial bargaining order, finding that there were mitigating circumstances.

The Board agreed with the judge’s recommendation of setting aside the election, but diverged by finding the conduct of the employer warranted a remedial bargaining order.  The Board explained that due to the detrimental impact the employer’s actions would have on employee’s comfort in going through a rerun vote, a remedial bargaining order was appropriate.

The Board took the opportunity to address the General Counsel’s recommendation to overrule Linden Lumber and reinstate the Joy Silk doctrine.  The Board held in Joy Silk that “an employer unlawfully refuses to recognize a union that presents authorization cards signed by a majority of employees in a prospective unit if it insists on an election motivated ‘not by any bona fide doubt as to the union’s majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union.’”  In Joy Silk, the employer did just that.  Joy Silk was enforced by the D.C. Circuit. Joy Silk Mills, Inc. v NLRB, 185 F.2d 732 (D.C. Cir. 1950).

Joy Silk was abandoned in Linden Lumber Division, Summer & Co., 190 NLRB 718 (1971), which held that an employer does not violate Section 8(a)(5) “solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election.”  The Supreme Court upheld the Board’s interpretation announced in Linden Lumber. Linden Lumber Division, Summer & Co. v. NLRB, 419 U.S. 301 (1974).  The effect of this decision permitted employers to require a Board-conducted election as a precondition to a bargaining obligation.

Under the new standard set in Cemex, “an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).”  According to the Board, an RM petition provides the employer recourse in the event the employer questions the legitimacy of majority approval by employees.  But, if the employer engages in unfair labor practices that require setting aside the subsequent election, the petition “will be dismissed and the employer will be subject to a remedial bargaining order.”

This decision is part of a resurgence for unions – the current administration has brought back an Obama-era rule which requires elections before resolving litigation – and, as I wrote about in a previous post, General Counsel Abruzzo has sought to prohibit captive audience meetings as well.  

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