The revelation of Jennifer Abruzzo’s inclusion of “Joy Silk” bargaining orders in her first GC Memo is too exciting to confine to one week of coverage. Anyone who cares about the more effective enforcement of the National Labor Relations Act should still be buzzing about the news, and I’m happy to keep the momentum going by elaborating upon something that I’ve hinted at in my other musings about the Joy Silk doctrine: that its disappearance from federal labor law was not your usual instance of reasoned administrative or judicial decision making. Indeed, history reveals that the decision to overturn Joy Silk was made by a single individual, and the culprit happened to be one of the National Labor Relations Board’s most trusted advocates.
I’ll begin by recounting the state of the law at the time Joy Silk was first introduced by the Labor Board up to its unceremonious departure. Borrowing heavily from Laura J. Cooper’s and Dennis R. Nolan’s insightful chapter in the essential Labor Law Stories, I’ll then recount how Dominick L. Manoli, a longtime Associate General Counsel for the agency throughout the middle of the twentieth century, knowingly and unethically mischaracterized the state of Board case law to the Supreme Court in oral argument of the Gissel Packing case. Although Manoli’s scheme was ultimately successful in dumping Joy Silk, I’ll conclude by demonstrating that the doctrine may be restored to its rightful place as the Labor Board’s lodestar on bargaining orders.
The History of Pre-Gissel Bargaining Orders
In contrast to their controversial existence today, bargaining orders—the remedy by which the NLRB will order a recalcitrant employer to recognize and begin bargaining with a union, with or without a secret-ballot election—were given the Supreme Court’s stamp of approval relatively early on in the Wagner Act days, beginning with the Frank Bros. case in 1944. While the Taft-Hartley Act removed NLRB certification for unions by any other organizational method than elections, Congress refused to change the wording of Sections 8(a)(5) or 9(a) of the NLRA that combines to require employers to bargain with representatives that were “designated or selected” by a majority of employees in appropriate bargaining unit. (Tellingly, a House amendment revising Section 8(a)(5) to limit refusal-to-bargain unfair labor practices to certified unions was rejected in the Senate.) The statute thus clearly continued to contemplate the possibility of exclusive representation status for unions which had not won a secret-ballot election, including those that were voluntarily recognized by an employer or were recipients of bargaining orders by way of ULP litigation.
The NLRB still needed to craft a consistent doctrine that instructed when employers must recognize and bargain with a union short of an election. In Joy Silk Mills, Inc., 85 NLRB 1263 (1949), the Truman Board held that an employer could refuse to bargain with a union that claimed a majority of authorization cards only if the employer had a “good faith doubt” about the union’s claimed majority status. Examples including doubting the authenticity of the cards, or if the employer had independent knowledge that the majority claim was false. If found to legitimately possess such a doubt, the employer could insist that the union establish its majority through a representation election. But without such good faith doubt, the employer would be found to commit an unfair labor practice under Section 8(a)(5) if it refused to bargain with a union claiming to represent a majority of bargaining-unit employees.
There were two ways in which a ULP could issue under Joy Silk: (1) where an employer failed to come forward with good faith grounds for doubting the union’s card majority; or (2) if the employer committed independent unfair labor practices following its refusal to recognize the union, which indicated “a desire to gain time and to take action to dissipate the union’s majority.” The burden was affirmatively placed on the employer to prove his good faith, and the doctrine soon ossified as a per se rule in which virtually any and all ULPs committed post-recognition request would be determined to retroactively prove bad faith.
Suffice it to say, this was a strict and unforgiving standard for employers to abide by. However, the Joy Silk doctrine was not controversial for the first 15 years of its existence; it was approved by every federal circuit court in the country, and its usage was partially limited by a strange procedural tweak. In a 1954 case called Aiello Dairy Farms, the Eisenhower Board—operating under the guise of conserving agency resources—held that if an employer refused to bargain with a union on the basis of authorization cards, the union had to choose to either proceed to a representation election or file the refusal-to-bargain charge with the NLRB; the union could not choose to do both. This eliminated the ability for a union to receive a bargaining order after losing an election, and it worked to funnel unions almost exclusively to the election route given the longer administrative hurdle of ULP litigation. As one Truman Board holdover argued in dissent:
This places an inequitable premium on an employer’s unlawful conduct for, although the employer is the wrongdoer, the union is given the illusory choice of guessing correctly that it can win the election or withdrawing its petition and pursuing the longer and more time-consuming procedure of going through an unfair labor practice proceeding.
Aiello would be the law until 1964, when the Kennedy-Johnson Boards of the 1960s—attentive to scholarship on industrial data and seeking creative remedies for improving the NLRA’s enforcement—eliminated this Hobson’s choice in a case called Bernel Foam. Recent data had shown that only 31 percent of unions which had lost an election tossed aside by the Labor Board due to unlawful interference were later victorious in the do-over, suggesting the re-run remedy had largely failed and that employers were generally profiting from their violations of the law. The designated antidote to this dilemma was the unmuzzling of Joy Silk.
The Kennedy-Johnson Board’s re-embrace of Joy Silk bargaining orders led to a marked increase in organizing through authorization cards. The number of bargaining orders issued by the Labor Board based on card majorities rose from 35 in 1963 to 157 by 1967. This, however, remained a small portion of the Board’s work; unions awarded recognized by cards rather than secret-ballot elections rose from a share of 1.1 percent in 1962 to 3.6 percent in 1968. Over 8,000 elections were held in 1967 alone.
Nevertheless, Joy Silk bargaining orders quickly became anathema to an increasingly-organized management community. More surprisingly, the good faith doubt standard received almost universal condemnation from those in academia, ranging from those of a more conservative and more liberal bent, who savaged the idea that the Labor Board could divine an employer’s mindset at the time of the request for recognition as “subjective”, “quixotic,” “naive,” “simplistic,” and more. An axiom emerged that authorization cards were inherently unreliable and could not be substituted for an election except in the most extreme of examples. As one critic wrote during this time, bargaining orders based solely on authorization cards was “the most controversial issue in Labor Law today.”
The nascent lobbying campaign soon bore fruit. In 1966, the Labor Board modified the Joy Silk doctrine in a case called Aaron Brothers, which shifted the evidentiary burden to the General Counsel at trial to demonstrate the employer’s bad faith. Bargaining orders were also to be reserved for situations in which the employer had engaged in “substantial” ULPs or in clear examples of bad faith, such as repudiating a previously agreed-upon card check to later insist on an election. As Cooper and Nolan described the Aaron Brothers modification:
The significance of the change was that an employer would not violate § 8(a)(5) solely because it refused to rely on authorization cards; it need not even advance any reasons for rejecting the bargaining demand. Good faith, in other words, was still the touchstone but the General Counsel had to prove its absence.
This was the state of the law when the Gissel Packing case was winding its way to the Supreme Court. What we know now as “Gissel” was actually a combination of four different cases which challenged both the Labor Board’s prevailing standards on employer speech and the use of bargaining orders, but the Fourth Circuit’s bold declaration in 1967 that authorization cards were inherently unreliable for bargaining order purposes placed Joy Silk squarely on SCOTUS’s radar.
Joy Silk Falls Victim to a Rogue Advocate
Neither the NLRB’s nor the various companies’ lawyers in the Gissel case appeared to be confused about the law at the briefing stage. All cited Aaron Brothers and defended or attacked its merits as it applied to the cases on appeal. However, the Labor Board’s confident invocation of the Joy Silk doctrine apparently belied the inner turmoil of agency personnel. The initial author of the Board’s brief in Gissel, Thomas E. Silfen (a future tobacco industry lawyer at Arnold & Porter), wrote a letter to his father in which he argued that the Joy Silk doctrine should be further modified to only ever result in a bargaining order in cases where employers have engaged in such “flagrant coercive conduct” that made a fair election impossible, but “unfortunately” the Board had not abandoned the “subjective motivation” inquiry of the good faith doubt test for this theory. Silfen believed the current case law was a “tortured theory” that would “cause great difficulty before the Court.”
Silfen was not the only Labor Board attorney on the case who was cool on Joy Silk. Dominick Manoli, the longtime Associate General Counsel who was handling oral argument for Gissel, was apparently stumped during moot courts while prepping his argument:
In the practice session, Manoli was presented with a hypothetical of an employer who hadn’t committed any [independent] unfair labor practices and who also had no doubt about the validity of the authorization cards. The hypothetical employer told the union he wouldn’t recognize the union solely on the basis of authorization cards and wanted an election. The lawyer pretending be a Supreme Court justice asked Manoli whether this employer would have committed an unfair labor practice. Manoli replied that this wasn’t an unfair labor practice. The mock justice then reminded Manoli that in the hypothetical the employer had no good faith doubt. … Manoli “was left speechless, without a good answer.”
This, of course, is a bizarre error. The answer to the mock Justice’s argument is extremely simple under Joy Silk. Section 8(a)(5) of the NLRA declares it an unfair labor practice for an employer to refuse to bargain with the representative of its employees. Section 9(a) defines a “representative” is one that is “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes[.]” An employer that has been presented by a union with enough authorization cards to constitute an uncontroverted majority of the employer’s workforce is, by the very text of the Act, unlawfully refusing to bargain with a majority representative. While many Board decisions over the years had declared the secret-ballot election the best barometer of employee free choice, no Board case on record had stated that employers were simply free to disregard authorization cards as worthless and proceed to an election at-will; indeed, the law at the time stated the very opposite, even through the watered-down version of Joy Silk in Aaron Brothers.
Manoli’s inability to defend the Board’s decisions on these terms revealed his underlying policy disagreement with the contemporaneous case law he was tasked with enforcing. Manoli and Silfen, likely influenced by the stream of criticism coming from their way from the labor bar, apparently believed that employers should be able to have elections as a matter of right unless they had committed flagrant unfair labor practices. Perhaps this more lax standard would be easier to defend at the Supreme Court, which had been known to strike down vigorous Board remedies in the past, but it was simply not the state of federal labor law as it stood in March 1969 when oral argument was held in Gissel.
Incredibly, though, when asked by Justice Byron White about when an employer may insist upon an election in the absence of good faith doubt about the authenticity of a card majority, Manoli presented his policy preferences to the Court as an answer. Unethically, he pretended that his policy preference was actually the current state of Board law:
BW: Well, Mr. Manoli, what is the Board’s view of what the employer must … what is their position that he must take before the Board that will recognize that he may insist on an election rather than to a recognition based on cards?
DM: Your Honor, if the Union goes to an employer and says to the employer, we have cards here from the majority of your employees as their bargaining representative. The employer may say, the Board has said this — the employer may say, “I don’t like cards. I don’t wish to rely upon your cards and I do insist that you go to an election.” …
BW: But that — but won’t that get him — the union may just file 8(a)(5) charges on him then.
DM: The Board will — the General Counsel will not issue a complaint on the basis of that in that kind of situation where the employer says to the union, “I don’t wish to rely upon cards”.
BW: “I don’t care how many cards you’ve got. I just don’t like it.”
DM: That’s right.
BW: He can get an election then?
DM: That’s right.
BW: That represents what the position of the Board is?
DM: That’s right. As long as he does not misbehave, now that’s what they say. …
BW: It certainly doesn’t emerge from your briefs in this case.
The rest of Manoli’s oral argument has to be heard to believed. (You can listen yourself here, and I highly encourage it.) The Justices sound dumbfounded and confused, aware that Manoli is saying something completely at odds with the arguments made in the Board’s brief but likely not wanting to assume a national expert in labor law is flat-out wrong (or worse, lying!) about something he is proffering to the Supreme Court.
(The first management lawyer to argue Gissel was equally befuddled as the Justices, quipping “Well, I am going to ask for a printing of the record in that regard from [Manoli’s] remarks in presenting that to the next trial examiner that I have because that is certainly news to me.” Silfen, who was in the courtroom that day, told Cooper and Nolan of the outrage from the attending union lawyers at the sudden abandonment of the good faith doubt test: “The union people were climbing the walls. I remember chaos. They were all upset.”)
Several Justices kept returning to White’s colloquy and attempted to nail down what case the Board had abandoned the good faith doubt test in; Manoli either dodged these questions or incorrectly stated that Aaron Brothers is where the change occurred. At one point he equivocated as follows:
But it has not been a recent change really, your Honor. I think that this began some time in the early 60s. At one time the Board would take the position … it was not enough for him to say I don’t like the cards. He had to have — or not enough for him to say that I have a good faith doubt in your majority status — he also had to have some objective evidence which supported his good faith doubt.
That was the Joy Silk standard which still existed, only modified to the extent that the Board had the duty of proving the employer’s bad faith at trial rather than the employer having to come forward with evidence of its good faith. Manoli’s insistence to the Justices that this standard had been abandoned by the Board is either a mistake or a lie, and it is inconceivable that someone like Manoli—whose name, as Cooper and Nolan point out, appeared in 646 NLRB documents filed in the Supreme Court between 1945 and 1971—would be so misinformed on an elementary matter of Board law. The inescapable conclusion is that Manoli was simply lying to the Court to try and win the case on a theory of law he thought more palatable.
Whatever the Justices’ skepticism, Manoli would wind up successful in his crusade to kill Joy Silk. As Chief Justice Earl Warren wrote for a unanimous Court:
Although the Board’s brief before this Court generally followed the approach as set out in Aaron Brothers, supra, the Board announced at oral argument that it had virtually abandoned the Joy Silk doctrine altogether. Under the Board’s current practice, an employer’s good faith doubt is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election. Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct; he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple “no comment” to the union.
Manoli’s policy preference was now enacted into law.
Perhaps this would have been the inevitable evolution of the NLRB’s decisions in this realm, especially given the Nixon Board’s ascension to the ideological majority that same year. Joy Silk’s days may very well have been numbered. But it is emphatically not the province and duty of random civil servants to say what the law is. Manoli’s ethical violation is as flagrant as it is unique, seemingly forgotten or excused by anyone who mattered following his agency’s “win” in Gissel.
I will not recount my entire argument on how Gissel bargaining orders—which virtually track the standard theorized in Silfen’s letter—are vastly inferior to the Joy Silk doctrine in preventing employer unfair labor practices; those interested can find that analysis here. Simply put, Manoli’s aesthetic tastes for how he thought the law should be resulted in a deleterious path for the NLRA.
The Path for Joy Silk’s Revival
Gissel was not quite the end of that story. The question which Manoli found himself ensnared in—whether an employer can simply sit on his hands when presented with a card majority—was not answered until 1974 in a 5-4 decision called Linden Lumber, which upheld the Nixon Board’s dismissal of a Section 8(a)(5) charge against such an employer. Good faith doubt was officially dead; all that mattered was whether the employer had committed such “pervasive” and “outrageous” unfair labor practices to destroy its employees’ chances at voting in a fair election.
However, this does not need to be the last word on the matter. As Professor Charles Morris has argued, the Linden Lumber majority essentially held that the Nixon Board’s interpretation of the NLRA was a permissible one, but not at all a mandatory one. Justice William Douglas made this clear in his opinion:
In light of the statutory scheme and the practical administrative procedural questions involved, we cannot say that the Board’s decision that the union should go forward and ask for an election on the employer’s refusal to recognize the authorization cards was arbitrary and capricious or an abuse of discretion.
The same goes Gissel. Nothing in the opinion suggests that Manoli’s interpretation of the law was the only one allowable. Indeed, the Court takes pain to point out that Manoli was the one jettisoning Joy Silk, not the Court. It is thus entirely proper for the Board to put forward a more strict framework for bargaining orders than the one the Court crafted in Gissel.
Jennifer Abruzzo seems to agree. She would not drop a reference to Joy Silk in her memo if she thought the Supreme Court had foreclosed her ability to resuscitate it. While the Board will likely need to do a great bit of massaging of the Gissel/Linden Lumber episode of history in its forthcoming briefs, this is the sort of leeway granted to administrative agencies when charting the course of federal law. Over fifty years of history has demonstrated that Gissel bargaining orders have been a tremendous failure for the NLRB. It is well past time that the Board return to a doctrine that saw far more success in enforcing the law as written.
The history behind legal doctrines is often just as interesting as the doctrine itself. If Joy Silk's decline was driven more by individual influence than broad consensus, that adds an important layer to today's debate about its potential revival.
this is stunning news to me. i have only followed labor law superficially i suppose. it will now join the supreme court on my list of what to watch on a daily basis.