The Return of Card Check Bargaining Orders?

Published on: September 1, 2021

Authors: Gregory Hoff

Topics: Employee Relations

As noted previously, newly sworn in National Labor Relations Board General Counsel Jennifer Abruzzo released a memo outlining several issue areas and related precedent that her office considers a priority for potential change. One particular area identified in the memo, however, is worth highlighting in more detail – the Board’s authority to compel an employer to recognize and bargain with a union based on signed authorization cards from a majority of workers (card check), rather than through a traditional secret ballot election.

The Current Election System

Absent an employer voluntarily recognizing a union, a secret ballot election is currently the only path for a union to gain recognition as the exclusive bargaining representative of a private sector workforce. Either a union with a 30 percent “showing of interest” of support traditionally obtained through signed union authorization cards of employees in the proposed unit, or an employer, in response to a union’s request for recognition, can petition the NLRB to hold a secret ballot election. Under certain limited circumstances, the Board will issue bargaining orders (Gissel bargaining orders) where a union has obtained a majority of employees in the proposed unit’s signed union authorization cards and an employer has committed unfair labor practices that are so egregious as to thoroughly destroy any possibility of a fair election.

The Joy Silk Approach

In her memo, however, General Counsel Abruzzo identified a 71-year-old NLRB case that originally authorized the Board to issue bargaining orders in a wider range of circumstances, and indicated that she would be willing to expand those circumstances even beyond that case. In Joy Silk Mills, Inc. 85 NLRB 1263 (1949), the Board established that a union could obtain a bargaining order from the Board if it had authorization cards from a majority of employees and the employer, after refusing recognition, had committed unfair labor practices before the election had begun. The Board abandoned Joy Silk after the Supreme Court decided NLRB v. Gissel Packing Co. 395 U.S. 575 (1969), under which, as mentioned above, a bargaining order will only be issued if the unfair labor practices in question prevent any chance of a fair election.

The departure from Joy Silk was confirmed in the Board’s decision in Linden Lumber Div., 190 NLRB 719 (1971), where it made it clear that an employer has no obligation to file a petition for an election even where it refused to recognize and/or bargain with a union that has presented evidence of majority support. The Supreme Court subsequently affirmed the Board’s position in Linden Lumber. Accordingly, Democrat and Republican Boards have not used the Joy Silk standard in more than 50 years, and Gissel bargaining orders themselves are fairly rare.

A Revived and Expanded Joy Silk Standard

According to her memo, General Counsel Abruzzo would revive the long-abandoned Joy Silk standard. Even further, the language of the memo appears to construe the Joy Silk decision in a manner that goes beyond the scope of the original decision. Specifically, while Joy Silk, as mentioned above, is traditionally understood to allow Board bargaining orders where an employer presented with card check has engaged in unfair labor practices and is unable to explain its reason for doubting majority status, Abruzzo would apparently allow for bargaining orders in either of these circumstances. In essence, according to General Counsel Abruzzo, the Board could compel an employer to recognize and bargain with a union on the basis of card check alone, unless an employer can provide a good faith basis to question the union’s majority status – an extraordinarily difficult burden for an employer to meet.

Outlook

Organized labor and their Democratic Congressional allies have spent years attempting to legalize card check authorization under the NLRA, with recent efforts including the Employee Free Choice Act and the PRO Act – the latter of which is currently pending in the Senate. By reviving and expansively interpreting Joy Silk, General Abruzzo would apparently attempt to circumvent the legislative route and backdoor card check authorization through Board decision-making. Whether her interpretations will be shared by the new Democratic-majority Board and the federal courts remains to be seen.