Stacking the Deck: NLRB General Counsel Seeks Union-Friendly Labor Law Reform in Card Check Recognition Procedure

In what can only be viewed as tilting the odds in favor of organized labor, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo recently filed a brief with the five-member, Democratic-controlled Board in a case pending on appeal – Cemex Construction Materials Pacific, LLC – to request the reinstatement of the Joy Silk doctrine.

As previously discussed here, this policy – which was rejected by the NLRB more than 50 years ago – would make it unnecessary, with limited exceptions, for a union to win an NLRB-conducted election in order to represent a group of employees. Instead, the union would simply need to obtain authorization cards from a majority of workers (i.e., 50% plus one) to gain recognition.

GC Abruzzo’s endorsed method of union recognition would effectively nullify major portions of the National Labor Relations Act without congressional approval. Indeed, this bid to bring back Joy Silk blatantly ignores the practical and real-life considerations that come into play during union organizing campaigns and – in actuality – endangers one of the foundational principles underlying the Act: employee freedom of choice.

Equally important, this policy position ignores a host of legitimate legal issues, such as the veracity of employee signatures, coercion in the signing process, employee confusion in signing authorization cards, appropriate units of employees, supervisory taint and other instances of undue influence – to name a few.

While employers have always been able to voluntarily agree to a card check process to determine union representation, having that procedure imposed on businesses (and on employees) should be considered a bridge too far even for the current union-friendly NLRB.

TAKEAWAY: NLRB General Counsel Abruzzo’s attempt to reinstate Joy Silk is now left for the Board to decide. If adopted, employers across every industry should be cautious of how much easier it will be to organize their workforce and thus take preemptive measures to avoid such outcomes. So, as we’ve stated before, stay tuned!