June 13. 2022

Board Expected to Consider Reviving Discarded Doctrine

In a letter to the National Labor Relations Board (NLRB), a group of business and trade organizations is asking the agency to reject new arguments that would pave the way for union organizing via card check.

In April, NLRB General Counsel Jennifer Abruzzo filed a brief requesting the revival of the Joy Silk doctrine. The legal theory, which dates back to 1949, allowed for unions to organize by presenting signature cards purporting to represent the desire from a majority of workers to form a union. Through this doctrine, the burden of proof was placed on the employer to demonstrate why the cards were invalid. The Joy Silk doctrine was eventually supplanted in 1969 by the Supreme Court’s decision in NLRB v. Gissel Packing, a case where an employer refused to bargain with a union on the grounds that the card check process was inherently unreliable. Although the court did not explicitly overturn the Joy Silk doctrine, the ruling led to a new standard for union organizing through a formal vote.

As the letter points out, Congress was repeatedly rejected calls to reintroduce card check through legislation in decades since the Gissel ruling. Further, the letter signers, which include FEDA, are asking the board to reject the idea that employers holding mandatory staff meetings to discuss union issues is “inherently coercive.”

“These issues, should the Board agree with the (general counsel’s) position, will have a real world impact on our member companies and make it far more difficult for them to manage their business,” the letter states.