Why Labor Law Needs "Joy Silk" Bargaining Orders

Employer misconduct has skyrocketed since the NLRB abandoned the doctrine over 50 years ago.

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When I inaugurated Labor Law Lite with a post featuring ten recommendations I had for Joe Biden’s National Labor Relations Board, the issue I was most excited to write about was also the one I expected the least amount of feedback on. I was incredibly pleased to learn I was wrong—Joy Silk garnered the lion’s share of the discussion I saw on Twitter from readers.

Bargaining orders—the remedy by which the NLRB will order a recalcitrant employer to recognize and begin bargaining with a union—are a rarity today. Most only know them as “Gissel” bargaining orders, their namesake since the 1969 Supreme Court case which upheld the Labor Board’s use of the remedy under specific circumstances. But bargaining orders existed in greater frequency and with greater power twenty years prior when the NLRB decided Joy Silk Mills, Inc., 85 NLRB 1263 (1949). Bargaining orders stood in stark contrast to the more typically weak Labor Board remedies that draw criticism today, such as the loathed notice-posting order.

This post will be comprised of three parts: (1) what is a Joy Silk bargaining order; (2) how did NLRB v. Gissel Packing Co. water down the bargaining order remedy; and (3) why did this shift in the remedy matter for our national labor policy. I hope it will become clear why Joy Silk’s disappearance explains much of the chronic under-enforcement of federal labor law over the last half-century and why it is crucial that we resurrect this dormant doctrine.

What is a Joy Silk Bargaining Order?

Section 8(a)(5) of the National Labor Relations Act provides it is an unfair labor practice for an employer to refuse to recognize and bargain with a union that has been designated as the representative for such purposes by a majority of employees in an appropriate bargaining unit. No provision of the NLRA restricts an employer’s bargaining obligation only to unions that have been certified through the NLRB’s representation election process. It thus follows that the Labor Board may order an employer that has violated Section 8(a)(5) to bargain with a union that has not yet won an election but is the verified majority representative of the employees through other means, such as signed union authorization cards.

Because there was some limit upon when a union could demand bargaining through a request for recognition—i.e., the union must have represented a majority of the proposed bargaining unit—the NLRB had to articulate some standard that clarified when the employer’s obligation would attach. In its Joy Silk decision, the Truman Board laid forth such a standard: an employer would violate Section 8(a)(5) and be ordered to bargain if it was presented with a union request for recognition and the employer did not possess a good faith doubt as to the union’s majority status when it refused to recognize the union.

A lack of good faith could be determined through the employer’s verbalization that it did not doubt the union’s majority status or, after refusing recognition, the committing of unfair labor practices which evinced the employer’s “rejection of the collective bargaining principal or … desire to gain time within which to undermine the union.” The occurrence of one of these two events, in addition to the union’s evidentiary showing to Labor Board agents that it possessed a majority of signed authorization cards at the time it requested recognition, would result in the issuance of a bargaining order. This remedy could flow following a union’s loss in an election or without one having ever occurred.

I described the legal attacks that employers levied on Joy Silk in the earlier post:

[M]anagement representatives regularly attacked the doctrine on several grounds: it placed the burden of proof on employers; it required the NLRB to subjectively interpret the employer’s intent based upon a few words of dialogue (or sometimes none at all); and it allowed unions to obtain a bargaining order despite the supposedly inherent unreliability of authorization cards.

But these substantive critiques only existed because of the real reason why management hated Joy Silk: it was extremely effective in deterring the commission of unfair labor practices in representation elections. Any sort of systematic erosion of the union’s majority by unlawful means could result in a bargaining order that reversed a lost election or prevented one from even being held. This was a big risk for managers to take with a watchful Labor Board. The low threshold of what constituted a lack of good faith doubt undercut much of employers’ modern-day campaign strategy, which treats rule breaking as a simple cost of business.

How Did Gissel Water Down the Bargaining Order Remedy?

The good faith doubt analysis, described as a “thicket” by its detractors, became more unpopular over time. Management railed against Joy Silk for the aforementioned reasons, but top NLRB officials became disillusioned with it due to the evidentiary quandaries in proving an employer’s subjective state of mind and the increasing frequency with which unions sought the remedy, eating up more and more of the Labor Board’s docket. By the late 1960s, agency lawyers were scheming how to abandon the doctrine altogether despite the Kennedy Board’s reluctance or unwillingness to do so (as recounted in dramatic fashion in one of the chapters of Labor Law Stories).

Gissel Packing was a landmark case for many reasons. The Supreme Court at once clarified the extent of employers’ free speech rights under Section 8(c) of the NLRA; it upheld the NLRB’s use of union authorization cards to determine majority support in bargaining orders; and it upheld the NLRB’s method for determining the validity of authorization cards. But most importantly, the Court altered the Labor Board’s use of bargaining orders in three ways: (1) by removing the good faith doubt test as the epicenter of the analysis; (2) by restricting the number of situations in which bargaining orders could be issued; and (3) by explicitly subordinating bargaining orders beneath the Board’s election machinery.

Noting that the agency attorney arguing the case had essentially abandoned Joy Silk’s good faith doubt test sua sponte, the Supreme Court created a three-tiered analysis for issuing bargaining orders:

  1. In situations in which the employer has committed “outrageous” or “pervasive” unfair labor practices that make it impossible to hold a fair election, a bargaining order should almost always be issued.

  2. In less extraordinary cases marked by less pervasive unfair labor practices which nonetheless have the tendency to undermine majority strength and impede the election processes, a bargaining order may be issued.

  3. In situations involving minor or less extensive unfair labor practices that have only a minimal impact on the election machinery, a bargaining order should not be issued and a re-run election should be held instead.

This structure marked a radical departure from the Labor Board’s previous threshold for issuing bargaining orders. Whereas most any unfair labor practices could potentially serve as the foundation for a Joy Silk bargaining order, now only substantial employer transgressions would justify such a remedy.

The Court also spoke of the “acknowledged superiority” of the election process as compared to the use of authorization cards. While it rejected the employers’ argument that cards were inherently unreliable as a barometer of employees’ union sentiment, the Court nonetheless created a clear implication for future case law that cards were less reliable than elections and should thus be avoided as a substitute whenever possible.

This preference, combined with the raised floor for the remedy’s use, have had predictable effects in the federal courts of appeals. Reviewing judges are increasingly unlikely to approve the “extraordinary remedy” of a Gissel bargaining order and will instead seek to re-run an election (or hold a first one) where any sort of wiggle room can be detected in the fact pattern. The result is that the “less pervasive” violations which comprise Category II Gissel cases will now almost never result in an enforced bargaining order, and even Category I orders can be rejected under the guise of changed circumstances.

Why Does the Difference Between a Joy Silk and Gissel Bargaining Order Matter?

The deleterious effects of the shift to Gissel is not founded on guesswork. Union lawyer Brian Petruska wrote an incredibly thorough law review article in 2017 that traced the explosion in employer unfair labor practices almost exactly to the point that Joy Silk was abandoned by the NLRB. I originally was skeptical of confounding variables, but Petruska anticipates all other possible explanations and demonstrates why they would not explain the swift and steady rise in employer wrongdoing. It becomes inescapably clear from reading this article that employers noticed the decreased consequences for unlawful activity and have taken advantage of this to a catastrophic degree.

We can demonstrate the importance of Joy Silk by examining the events of a recent NLRB case, Sysco Grand Rapids, LLC (07-CA-146820). Teamsters Local 406 began organizing the Grand Rapids facility of grocery delivery and distribution company Sysco, Inc. in the summer of 2014. Sysco’s management became aware of the campaign soon after and began monitoring the union sentiments of each employee. By December 18, the Teamsters possessed a majority of signed authorization cards within its proposed bargaining unit. It was around this time that management’s soft anti-union campaign exploded into an all-out blitzkrieg.

Sysco held weekly captive audience meetings that progressively increased in intensity. Management representatives—ranging from senior managers to the plant president—explicitly threatened a loss of wages, benefits, and jobs. A key union supporter with 15 years of exemplary service was discharged on trumped-up charges. Employees began receiving payment of “safety bonuses” for the first time in the facility’s history. Eventually, the company’s regional president promised plant closure if the workers ever unionized.

The Teamsters lost the NLRB election in May 2015 by a mere 11 votes. The union challenged its loss as the product of myriad unlawful acts and asked the Labor Board for a Gissel bargaining order. Investigating the numerous charges took months to produce an official complaint from the agency, and hearings were conducted over the course of 14 days spread over nearly five months. Over 200 exhibits were introduced and over 2,000 pages of testimony were elicited at trial. Finally, in January 2017, an Administrative Law Judge issued an opinion finding the company guilty of several “hallmark” unfair labor practices that necessitated the granting of a bargaining order under Gissel Packing.

This wasn’t the end of the matter. Sysco stalled full NLRB review of the decision as long as possible, asking on multiple occasions to re-open or re-hear the case due to employee turnover in the bargaining unit. These requests were repeatedly denied, but briefing on the case was not completed until July 2018. The Trump Board did not issue a decision on the merits until April 2019, in which it upheld virtually the entirety of the ALJ’s findings while rejecting the Gissel bargaining order remedy. It instead ordered a re-run of the tainted election.

How did the Republican majority manage this feat despite verifying the existence of numerous hallmark violations? It observed that nearly four years had transpired since the election date and the bargaining unit had seen over 30 percent turnover during this time. Noting that reviewing courts were much less likely to enforce a Gissel bargaining order with these conditions present, the Trump Board did their work for them and scaled the remedy down to a second election.

This is a grave injustice. The delay in Board review was the product of the employer’s obstruction and the agency’s acquiescence. Even so, the NLRB should not defer to unfavorable circuit court precedent simply because an agency decision may not be rubber-stamped. As Democratic Member Lauren McFerran pointed out in dissent, this essentially outsources the Labor Board’s role in interpreting the NLRA to the non-expert courts:

But, even at the risk of nonenforcement, we must stand for the Act, not only because the Board is primarily responsible for effectuating the purposes and policies of the Act, but also because the Board must set national labor policy and cannot effectively do so by reverting to the least protective approach from a patchwork of views among the federal courts of appeals.

The Teamsters are now tasked with winning a second election in a shop that was home to wanton employer lawlessness and has potentially seen majority turnover in the original bargaining unit. Notice of a hearing on this election was finally sent by the Labor Board on October 28, 2020—over five-and-a-half years since the first election was held and over six years since the union began organizing the facility.

The Trump Board went out of its way to deprive the union of a fair and adequate remedy, but the real problem with this decision is baked into Gissel itself. The higher standards for a bargaining order and institutional preference for elections have reduced the courts’ acceptance of the remedy. Employers, aware of this internal trepidation, are incentivized to act as egregiously as possible during the organizing campaign and then stall out the union in administrative appeals. If the company is ultimately successful in rescinding the bargaining order, then it is rewarded with another fight against a tired and emaciated union.

The ghost of Joy Silk can be felt haunting this case. Whereas the Teamsters were required to endure as many serious unfair labor practices as possible in the lead-up to the May 2015 election if they were to ever have a chance at obtaining an enforceable Gissel bargaining order, under Joy Silk the union could have credibly requested recognition in December 2014 as soon as it obtained majority support through authorization cards. It would then be able to point to any subsequent unfair labor practices as evidence of Sysco’s lack of good faith doubt when it (presumably) denied the request for recognition. More importantly, these unfair labor practices may never have been committed in the first place, as the lower threshold for Joy Silk bargaining orders greatly reduces the employer’s incentive for running the sort of scorched-earth campaign on display here. Joy Silk would have flattened the timeline of litigation or, even better, prevented it altogether.

Of course, questions abound as to whether an increasingly conservative judiciary will embrace the NLRB’s reintroduction of a doctrine that has been dormant for half-a-century, especially one that rejects a system put in place by the Supreme Court. But I reiterate my thesis in the ten recommendations post: the status quo is worse and time is running out. The Labor Board must be bold in reasserting its place in setting national labor policy, and bargaining orders lie waiting as a potential remedy with teeth. The return of Joy Silk would be a legitimate game changer in American labor law and should be on the tip of every union advocate’s tongue over the next four years.