by Brandon Magner | Labor Law Lite
Jennifer Abruzzo has released her first General Counsel Memo since being confirmed to the top prosecutor position of the National Labor Relations Board. As with other debut GC Memos, Abruzzo highlighted which recent decisions of the departing Board majority she wished to reverse, as well as outlining what areas of the law the agency’s regional offices should be looking to send to headquarters for coordinated investigation. Most if not all of the controversial Trump Board decisions were placed squarely in the line of fire, including those that reversed Obama Board decisions (such as the decision involving employee use of company email for Section 7 activity) and those that reversed longstanding law (such as the replacement of the Board’s clear-and-unmistakable standard for unilateral changes with the contract-coverage standard).
But Abruzzo’s memo contained some remarkable information. Not only is she going to prioritize reversing as much Trump era precedent as possible, but she intends to revisit some long-dormant case law that harkened back to a day of stronger enforcement of the National Labor Relations Act. Specifically, Abruzzo wants to revive the Joy Silk doctrine for bargaining orders; reintroduce the Ex-Cell-O Corp. compensatory remedy for victims of bad-faith refusals to bargain; reverse the Board’s Hot Shoppes decision, which unjustifiably presumes employers have a legitimate business reason to hire permanent replacements for economic strikers; and broaden the use of Section 10(j) injunctions beyond the common “nip-in-the-bud” termination context. The first two were recommendations I made in my debut post on this Substack; the other two I’ve generally advocated for in my other writings.
I anticipate analyzing all of these proposed legal changes in the coming future, including Abruzzo’s plan to revisit the Trump Board’s definition of intermittent strikes in the recent Walmart case, which may signal its replacement with Craig Becker’s far more expansive view of their legality, something the Obama Board planned to litigate before running out of time. But first, I want to focus on the Joy Silk aspect of the memo, as (1) the doctrine has become somewhat of a hobby horse of mine since starting the blog, and (2) it is a massive step forward in more effectively enforcing the NLRA as written.
Putting the “Order” Back in Bargaining Orders
I’ve written about the Joy Silk doctrine at some length. Dating back to 1949, Joy Silk held that if an employer was presented with a union’s request for recognition and the employer did not possess a good-faith doubt as to the union’s majority status when it refused to recognize the union, an employer was to have violated Section 8(a)(5) of the NLRA and be ordered to bargain with the union.
An employer which denied a union’s request for recognition would be required to demonstrate its good-faith doubt of the union’s majority status to the Labor Board, but it would automatically lose this argument if it committed any unfair labor practices after denying the union’s request for recognition. The reason for this seeming inflexibility is common sense. An employer that had a good-faith doubt as to the union’s majority status wouldn’t need to go and break the law. Indeed, this would be evidence that the employer had expressed a bad-faith doubt in the union’s majority status and was stalling for time to chip away at the workers’ support.
Joy Silk was eventually approved by every federal circuit court in the country, but it died an unceremonious death in 1969. The story of how Joy Silk bargaining orders came to be supplanted by the far weaker Gissel analysis is more interesting (and scandalous!) than you’d expect, and I encourage anyone curious of this story to read Brian Petruska’s prescient article on the history of Joy Silk and the need for its return. Petruska convincingly demonstrates that labor law enforcement fell apart in the years following Joy Silk’s demise in no small part due to the ineffective framework for policing employer conduct in union elections which succeeded it.
Bad-Faith Doubt at the Paper of Record
Barely an hour after the NLRB released Abruzzo’s GC Memo, the Daily Beast reported that a lawyer representing the New York Times in its fight against the paper’s organizing tech workers accidentally sent a confidential strategy briefing to a staff member of the challenging union. The briefing, prepared by management lawyers of Proskauer Rose, isn’t all that salacious in its nature; as in any union election battle, the Times’ lawyers were presenting the client with multiple options as to how to potentially beat the union in an election or minimize its impact if victorious. That is standard fare.
But the revelations behind these recommendations are damning. The briefing includes a chart that contains extremely detailed estimates as to who is supporting the union, who is not, and who is on the fence, in such a way that may indicate unlawful polling or, more likely, unlawful surveillance. (The union recently filed pending unfair labor practice charges against management alleging the latter.) As the Daily Beast reports, the Proskauer Rose attorneys “put together charts estimating support among potential union staffers, concluding that the union had majority support among possible members.”
This is where Joy Silk comes in. Under current law, the Times’ management is allowed to barrel ahead to an election regardless of the fact that they know the union enjoys majority support among the petitioning workers, even if management’s intent is solely to stall and attempt to undermine the union. Under Joy Silk, management’s lack of good-faith doubt about the union’s majority status means that it is required to bargain with the union, regardless of whether there has been an election to certify that majority. The Times’ potential unlawful conduct in the interim is merely icing on the cake.
This is why the Joy Silk framework is the best vehicle for carrying forth the NLRA’s statutory purpose of promoting collective bargaining. Current law assumes the union is either outright lying when it requests recognition from the employer, or that its claim is so questionable that it must be tested by an onslaught of negative campaigning. Joy Silk assumes the union is essentially on the level as a collective agent and that a wary employer must have good reason for any suspicion to the contrary.
Joy Silk is certainly the better vector of the NYT situation. The Times’ management has no doubt that the union currently represents a majority of its tech workers. It almost certainly had no doubt of this when the union first requested recognition and was reflexively denied of this dignity. What has followed is a kabuki theater of sorts, hosted by the NLRB’s legal machinery and sponsored by fifty years of laizzes-faire case law in this area.
While I doubt this will ultimately serve as the test case for reviving Joy Silk, as the union may feel comfortable with its majority and proceed as quick as possible to the election, such a vehicle won’t be very hard to find; Abruzzo’s memo requires regional employees to notify headquarters of any case that raises such issues, and the matters surrounding requests for recognition are ubiquitous. It will be fascinating to watch the Board battle to restore Joy Silk over the next few years, and I hope agency officials are zealous in their efforts.
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