The following article was submitted by Berchem Moses PC. It is posted here with permission.
Many would consider a secret ballot election by a group of employees seeking to organize into a union an example of democracy at work.
In a union election, the employees hear from union representatives touting the benefits of unionization, while the employer gets an opportunity to inform the workers, within lawful means, about why unionization might not be the panacea the union representatives make it out to be.
The general counsel of the National Labor Relations Board has a different view.
As widely reported, the general counsel of the NLRB has made numerous statements in the public and in legal actions seeking to explore doctrinal shifts in board precedent yielding pro-union results.
From statements arguing that college athletes are employees under the National Labor Relations Act, to increased scrutiny of employee handbooks, to increasing union access to employer facilities, the general counsel is seeking to upend board precedent that may prove costly for employers.
These efforts parallel the recent rise in union certification petitions and a wave of worker-led work stoppages in 2021 and the early part of 2022 (Amazon and Starbucks are prime examples of these trends).
One major focus of the general counsel to make unionization easier is to require an employer to recognize a union by authorization cards only.
This would eliminate the right of the employer to demand a private ballot election to determine whether a majority of its employees actually support the union.
In a brief filed by the general counsel in Cemex Construction Materials Pacific LLC, the general counsel advanced a theory known as the Joy Silk doctrine which states that an employer must accept union authorization cards as evidence of majority support of the union, absent a “good faith doubt” (determined by the board itself) as to the majority status of the union or the legitimacy of the cards.
Typically, majority status (often determined via an election) is a condition that must be satisfied before an employer is legally obligated to bargain with the union as the exclusive bargaining agent of the employees.
For historians, the Joy Silk case giving name to this doctrine was decided in 1950. The right of employers to demand an election was established in a case in 1974.
To underscore the landmark shift in doctrine this would be if the NLRB adopted the Joy Silk doctrine, consider the current law.
A union presents authorization cards to an employer stating that the majority of the employees want a union.
The employer can, of course, voluntarily recognize the union and commence bargaining. Alternatively, they can demand an election to test the majority claims of the union.
The election is overseen by a labor board agent and is conducted under “laboratory”-like conditions to ensure employees can exercise their free will when casting their vote for or against unionization.
If the NLRB adopts the general counsel’s position in Cemex, then the employer will be unable to demand an election, would be forced to litigate any “good faith doubt,” and may ultimately end up with a unionized workforce that they did not wish to have.
Employers should, with the support of legal counsel, monitor the outcome of that case.
Regardless of the outcome, employers may want to re-focus their efforts on their employee relations programs.
Within such a program, respect for the employees is paramount, including listening and following up on employee concerns.
Regardless of the general counsel’s positions or whether the board adopts it, preventive measures such as a robust employee relations program will help ensure that employees do not seek the advice or counsel of a third party.
This is vital because once the organizing campaign begins, it may be hard to stop the moving train towards unionization aided by the current NLRB and its general counsel.
About the author: Christopher Henderson is an associate with Berchem Moses PC’s Labor and Employment department. He represents public sector employers in large employment disputes, and has extensive experience in public sector labor relations.