By Attorney Matt Carpenter 

Back in August, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memo to the Board's regional offices in which she signaled the potential return to a long dormant standard related to an employer's bad faith refusal to recognize potential bargaining units.

According to the Joy Silk doctrine, employers must recognize, and potentially bargain with, a union where the union presents evidence of majority support (via cards) and the employer is unable to establish a good faith doubt as to the union's majority status. Employers who commit unfair labor practices or who otherwise act in bad faith would be subject to an NLRB bargaining order also known as a Joy Silk order.

In 1949, the NLRB ordered Joy Silk Mills to bargain with a garment union that wasn't certified through an election, but rather designated by authorization cards. The company had refused to negotiate with the union, insisted the union prove majority support through a vote, and committed unfair labor practices in the period before the ballots were cast, according to the Board. In this case, the NLRB found that the Company's refusal to bargain was merely an attempt to extend the time to campaign against union support and not a good faith doubt regarding majority support.

In 1969, the Supreme Court decided NLRB v. Gissel Packing, approving bargaining orders in scenarios where an employer's unfair labor practices and related actions destroy the possibility of a fair election. While Gissel did not overturn Joy Silk, the Board essentially ignored the doctrine for the next 50 years.

In issuing her August and September memorandums to the NLRB regional offices, Ms. Abruzzo seems to be inviting the use of these orders.

What would be the practical effect of a return to Joy Silk? First and foremost, it creates an easier avenue for new bargaining units to overcome nefarious employer practices to achieve recognition and the standing to collectively bargain over wages and working conditions. Additionally, the threat of Joy Silk orders could potentially discourage employers from interfering in fair elections.

Unions and labor advocates have long called for tougher penalties and better remedies as they relate to employers' illegal conduct and interference with unionization and the bargaining process. Until congressionally authorized, the Board is likely unable to issue monetary penalties in these scenarios; however, the proliferation of Joy Silk orders could provide stronger protections for workers seeking to unionize.

While, as of this date, no Joy Silk orders have been issued, unions and organizers have started to take notice and aspiring bargaining units, such as a group of coffee shop workers in Detroit, have begun to seek these remedies from the Board.

If you are an employee curious about your rights as a worker or concerned about your workplace treatment, please don't hesitate to call 312-818-6700.