More (Possible) Labor Pains

Darrell VanDeusen
Darrell VanDeusen

Earlier this week I wrote about some developments in labor law.  I thought my second blog would be about something completely different.  But wait, there’s more.

On Wednesday, April 12, the NLRB’s General Counsel, Jennifer Abruzzo, through her deputy GC, filed a brief to the Board that claims a former NLRB associate general counsel – in 1969 – “misrepresented controlling board law” in an argument before the U.S. Supreme Court, resulting in the current NLRB position on card-checks.  The GC asks the Board to return to the pre-1969 standard, tossing over 50 years of precedent.

If you are reading this blog, you likely know what a card check is.  Since the NLRA was passed in 1935, the law permits an employer to voluntarily recognize a union if the employer independently confirms that a majority of employees in a proposed bargaining unit have signed authorization cards seeking representation or an election to determine whether a majority of those who vote in the election want to have a union.

Unions can petition for an election if they get 30% of the cards signed by a proposed bargaining unit.  Most unions typically get 50-70% of folks signed up because they know people sometimes sign the cards but later vote no in an election.  Sometimes, you see, it is possible that there may be reasons other than wanting a union that an employee signs an authorization card.  More about that another time.

Members of management facing a union organizing drive are reminded “don’t look at the cards” if a union representative tries to show them to you.   Instead, ask the union to a petition for an election and hold a vote.  Convince folks having a union is in their best interest.  That’s very democratic. 

In Joy Silk Mills, Inc., 85 NLRB 1263 (1949), the NLRB held that an employer could lawfully refuse to bargain with a union claiming to have a majority of cards only if it had a “good faith doubt” as to the union’s majority status.” 

In NLRB v. Gissel Packing Co., 395 U.S. 575, 596–597 (1969), however, the Supreme Court held that the NLRB may order an employer to recognize a union if over 50% have signed cards and if there were ULPs that make a fair election unlikely.  This is known as a “non-majority bargaining order” and permits recognition without a vote in cases where the employer’s misdeeds are so widespread a fair election is impossible.  Gissel Packing orders are few and far between, with secret ballot elections recognized as the preferred and accepted method of determining whether employees want a union.  Again, (as with the law of “captive meetings” discussed in my Monday blog), this is the law as interpreted by every NLRB regardless of the party in power for over 50 years.


But recent elections like the Amazon win in Bessemer, Alabama, which the NLRB overturned a few weeks ago due to alleged employer ULPs, has raised the question of the balance of power in union elections.  Union supporters claim that the system is rigged against them.  Employers say unions may not actually offer a real added benefit and let employees decide by secret ballot.  Notably, in this process, unions win representation elections twice as often as they lose them.  Check it out at the NLRB’s own site:

The GC’s brief, filed in Cemex Construction Materials Pacific, 28-RC-232059 argues that the Board should “reinstate the doctrine under Joy Silk Mills, Inc., prospectively, because the Board’s current remedial scheme has failed to deter unfair labor practices during union organizing drives and provide for free and fair elections.”

The GC’s brief argues that it’s the election process that is responsible for the fact that private sector unionization is down to 6.1% in the U.S.  Yet, as mentioned above, unions still have a .666 batting average or better each year.  Ted Williams would be envious.

If the Joy Silk doctrine were reinstated, any employer who cannot provide clear evidence that a union does not have majority support (prove that double negative) could be ordered to bargain with the union without an election ever being held.  Not a level playing field, but recall from my Monday blog the GC Abruzzo doesn’t think that is her job. 

This hard charging approach is not going unnoticed.  A reporter for Bloomberg, which provides very balanced coverage all of the time, said that this is “another priority for Abruzzo, a pugnacious union lawyer who’s taken on college athletics, forced anti-union meetings, damages for wronged workers, and other high-profile endeavors since taking office in July 2021.”

What’s the Takeaway?   Batten down the hatches.  I am afraid that we are about to be in for a stormy ride.




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