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NLRB Is Reviewing a Rule Change That Has Helped Bosses Bust Unions for Decades

Under the Joy Silk doctrine, the NLRB may be able to effectively force bosses into recognition of a union.

Union workers rally in Downtown Los Angeles in support of unionizing Alabama Amazon workers on March 22, 2021, in Los Angeles, CA.

A top labor regulator is reviewing an obscure rule change that has helped bosses get away with illegal union-busting activities for decades. The decision could result in workers being more capable of exercising their right to organize a union without fear of retaliation by their managers.

General Counsel of the National Labor Relations Board (NLRB) Jennifer Abruzzo asked agency lawyers to pursue cases that could revive the Joy Silk doctrine, which was in effect from 1949-1969, when it was suddenly abandoned by the agency.

Abruzzo made the announcement in an August 12 memo outlining her priorities as top lawyer for the NLRB. She was confirmed by the Senate on July 21 in a 51-50 vote that required Vice President Kamala Harris to break the tie, in a deadlocked chamber split along party lines.

The Joy Silk doctrine gets its name from a South Carolina-based mill that was ordered by the Board in 1949 to bargain with a textile workers union, after company managers illegally coerced workers into opposing the union in a representation election, which was held after organizers asked the company for voluntary recognition.

When the legal framework was jettisoned by the NLRB in 1969, it was replaced by rules outlined in the Supreme Court case NLRB v. Gissel Packing Co. The new interpretation of the law is much more permissive toward bosses who illegally retaliate against organizing employees.

Under Joy Silk, bosses were forced to demonstrate “good faith doubt” when challenging the authenticity of union authorization cards, which workers in the U.S. must sign before forming a union. When 30 percent of a potential bargaining unit signs authorization cards, workers can petition the NLRB for a secret ballot certification election. When at least 51 percent of a potential bargaining unit signs cards, workers can petition their bosses for voluntary recognition of the union, though bosses often chose to deny these requests.

Joy Silk forced business owners to show why the NLRB must hold an election for union recognition when a majority of workers from the potential bargaining unit had already signed cards authorizing the union to bargain on its behalf. If management failed to demonstrate “good faith doubt” about the authenticity of authorization cards, when asked for voluntary recognition, the NLRB could then order bosses to bargain with the union, effectively forcing recognition.

“Good faith doubt” was routinely proven in Joy Silk bargaining orders when courts affirmed board agents’ claims that employers violated the National Labor Relations Act (NLRA) during organizing drives. Such violations, known as unfair labor practices (ULPs), largely consist of threats and punitive actions against workers who urge their colleagues to support union organizing efforts.

The NLRA, also known as the Wagner Act, recognizes the collective bargaining rights of most private sector workers, except railway and airline workers, who are covered by the Railway Labor Act. The Wagner Act, which was passed by Congress in 1935, also exempted both farmworkers and domestic workers (in order to win votes from Jim Crow-supporting Democrats — farm and domestic workers in the South at the time were mostly Black).

Since Joy Silk was replaced by the rules established in Gissel, workers covered by the NLRA have only been able to obtain bargaining orders if they demonstrated that management’s behavior made it impossible to hold a fair union representation election — a highly subjective standard. In the years after Gissel was decided, acts of illegal retaliation during union elections skyrocketed. One law review article published in 2017 found that charges of illegal firings per representation election increased by more than threefold from 1969-1983, and that the measure has remained well above pre-Gissel levels ever since.

Brian Petruska, the author of the study and general counsel for the mid-Atlantic region of the Laborers’ International Union of North America (LIUNA), said he doesn’t believe that a revival of Joy Silk would lead to a wave of bargaining orders or unions achieving voluntary recognition. Rather, it would simply stop managers from engaging in illegal union-busting tactics during representation elections. During the years when Joy Silk was in effect, Petruska noted, the number of union representation elections per year was actually at its peak, suggesting the doctrine is a key pillar of the election system.

“The most important thing is to make these elections less subject to employer threats and unlawful conduct,” Petruska told Truthout. “There’s a long list of literature documenting illegal conduct during organizing drives over the past 40 or 50 years.”

One such study, published in 2019 by the Economic Policy Institute, found that employers were charged with violating the NLRA in 41.5 percent “of all union election campaigns.” One in five organizing drives led to at least one worker alleging that they were illegally fired in retaliation for supporting union organizing efforts, according to the research.

The rate of ULP charges found by the Board to have merit didn’t decrease in the Gissel era either, as Petruska’s study found, despite the sharp uptick in allegations per election. Employers, it seems, merely found it more profitable to show complete disregard for labor law, given the diminished likelihood of facing a bargaining order for thumbing their noses at their workers’ right to organize.

In recent decades, companies found by the NLRB to have violated the Wagner Act during organizing drives have been mostly subject to slaps on the wrist. The Board can force an employer to issue backpay to wrongfully terminated employees, subject to various deductions, but it cannot presently fine employers. And while the Board can order companies to reinstate workers, such orders, along with backpay orders, may only come after months or years of litigation.

Penalties currently doled out by the Board can be as light as cease-and-desist orders, which Petruska described as giving “one free bite at the apple” to bosses illegally intimidating their workers, or an order for bosses to post notices informing workers of their rights under the NLRA, which Petruska said had “little value as a deterrent.”

“If the penalties that they face are so modest, employers will choose trying to keep the union out, even if it means crossing the line,” said James Cooney, assistant teaching professor at Rutgers University School of Management and Labor Relations. Cooney said routine violations of the law are seen by bosses as “the cost of doing business to try to break the union.”

When the NLRA was first passed, managers had to be neutral during union drives. That changed when the anti-union Taft-Hartley Act was passed by Congress in 1947, in response to a wave of postwar strikes. Bosses were then legally able to wage anti-union propaganda campaigns against their own workers, and it was considered protected speech under the First Amendment.

The percentage of employees in the U.S. that belonged to a union peaked at 34.8 percent in 1954, five years after the NLRB issued its decision in Joy Silk. The union density rate, which was at 10.8 percent in 2020, didn’t started to trend below 25 percent until the 1970s, after Gissel was decided.

Though the case law is obscure — there isn’t even a Wikipedia page for Gissel — those in the labor movement familiar with it are excited about the revival of Joy Silk. A spokesperson for the United Steelworkers (USW) told Truthout that the union “applauds General Counsel Abruzzo’s interest in reinstating the Joy Silk doctrine.” Larry Cohen, former president of the Communications Workers of America (CWA), called Abruzzo’s memo “the most significant NLRB document in decades.”

Cohen, currently the chair of Our Revolution, the political action committee founded by Sen. Bernie Sanders (I-Vermont), said, “Joy Silk is an example of how we establish the notion that majorities can build new unions.” He remarked that the deterrent to retaliation would make U.S. labor law more in line “with every other democratically elected government in the world.”

The USW spokesperson noted, “Joy Silk takes workers at their word: they sign authorization cards because they want to have a union and, under that doctrine, employers who unlawfully try to convince them otherwise run the risk of a bargaining order to enforce workers’ original wishes. It is an actual deterrent to violating federal law, unlike the system we currently have which encourages employers to illegally intimidate workers and to delay bargaining almost indefinitely.”

Though the federal court system has been hostile to organized labor in recent years, supporters of the Joy Silk revival are hopeful that the law is on their side. Federal courts routinely defer to the NLRB in the administration of the Wagner Act. The Supreme Court issued its Gissel decision because the Board effectively asked it to. (The request shocked justices at oral argument because NLRB attorney Dominick Manoli had deviated from the agency’s position on Joy Silk in written filings.) Moreover, labor lawyers note that a strict reading of the Wagner Act permits Joy Silk bargaining orders, which staves off so-called “textualist” challenges that right-wing jurists are fond of.

“Paragraph 8(a)(5) of the act makes it unlawful for an employer to bargain in bad faith, and that includes the failure to recognize the union’s majority,” said Petruska. He said that the Board has decided not to exercise this authority “during the organizing context out of a preference to resolve issues through elections,” but that the power still exists.

However, Petruska noted the right-wing dominance of the Supreme Court, saying, “I’d be lying to you if I said I wasn’t concerned.”

Another supporter of the Joy Silk revival, labor lawyer Brandon Magner, cautioned that even if courts approve of the rule, they could impose restrictions on its use. “You might see a lot of Trump or Bush appointees expressing skepticism about when the order can be issued,” Magner told Truthout. “Maybe they’ll treat it with a lot of skepticism and refuse to enforce the order in certain individual cases.”

Both he and Petruska were also concerned that conservatives and management-side attorneys would argue that the NLRB is attempting to do something that labor lobbied Congress for during the Obama administration: the approval of union authorization by card check, instead of secret ballot election.

“I like card check, and I wish it was the law,” Magner noted, saying that the ballot system in union elections serves a different purpose from its application in parliamentary democracy. When union elections are decided by the secret ballot and bosses don’t have to remain neutral, contests are often tainted by illegal management intimidation tactics, as the report from the Economic Policy Institute demonstrates. But Joy Silk, Magner said, merely acts as a “force field around the election process,” which has been utterly broken by abusive bosses.

“It’s the only way to bring back elections that are fairly administered, in which employees can vote freely without coercion,” he said. “The current system doesn’t allow that.” Magner says labor has nothing to lose, if the Board’s attempts are struck down by judicial review.

About an hour after the NLRB announced it would attempt to resurrect Joy Silk, news broke illustrating why the doctrine is needed. The Daily Beast reported how in early August, New York Times management accidentally sent an email about union-busting strategy to an official from the NewsGuild representing technology and product staffers for the Times.

The memo appears to show lawyers for the newspaper recognizing that the NewsGuild has majority support, while discussing illegal surveillance on workers. Organizers had asked the Times to voluntarily recognize their majority.

Petruska said that Times memo was a “great example because it shows explicit employer knowledge, and a clear disregard for the union’s majority status,” which was seen as “just an obstacle to overcome” in management’s attempts to undermine the union. Magner noted that many ongoing disputes between labor and management might exemplify Joy Silk violations “because of how ubiquitous unfair labor practices are” but that the Times case was “an incredible example.”

“You have proof that the employer has zero doubt about the majority status, and is just trying to use the election process to diminish the majority status,” Magner said.

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