JThe following article was submitted by Berchem Moses PC. It is published here with permission.
Many would consider an election by secret ballot by a group of employees seeking to organize into a union as an example of workplace democracy.
In a union election, employees hear union representatives extol the benefits of unionization, while the employer has the opportunity to inform workers, through legal means, of why unionization may not be possible. not be the panacea that union representatives claim to be.
The National Labor Relations Board’s general counsel has a different view.
As widely reported, the NLRB’s General Counsel has made numerous statements in public and in legal proceedings seeking to explore doctrinal changes in board precedent yielding pro-union results.
Whether it’s statements affirming that varsity athletes are employees under national labor relations law, increased scrutiny of employee handbooks, or increased union access to college facilities. employer, the Advocate General is seeking to overturn the Council’s precedent which may prove costly for employers.
These efforts parallel the recent increase in union certification petitions and a wave of worker-led work stoppages in 2021 and early 2022 (Amazon and Starbucks are prime examples of these trends).
One of the main purposes of the Solicitor General in facilitating unionization is to require an employer to recognize a union only by authorization cards.
This would eliminate the employer’s right to require an election by private ballot to determine whether a majority of its employees actually support the union.
In a brief filed by the General Counsel of 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 proof of support majority of the union, in the absence of a “good doubt of faith” (determined by the board itself) as to the majority status of the union or the legitimacy of the cards.
Generally, majority status (often determined by election) is a requirement that must be met before an employer is legally required to bargain with the union as the exclusive bargaining agent for employees.
For historians, the Joy Silk case giving its name to this doctrine was decided in 1950. The right of employers to demand an election was established in a case in 1974.
To highlight the historic change in doctrine would be if the NLRB adopted the Joy Silk Doctrine, consider current law.
A union presents permission cards to an employer indicating that the majority of employees want a union.
The employer can, of course, voluntarily recognize the union and enter into negotiations. Alternatively, they can demand an election to test the union’s majority demands.
The election is overseen by a labor board officer and is conducted under “laboratory” type conditions to ensure that employees can exercise their agency when voting for or against unionization.
If the NLRB adopts the general counsel’s position in Cemex, the employer will not be able to demand an election, will be forced to plead any “good faith doubts” and could ultimately end up with a workforce. union work that he did not wish to have. .
Employers should, with the support of legal counsel, follow the outcome of this case.
Regardless of the outcome, employers may want to refocus their efforts on their employee relations programs.
In such a program, respect for employees is paramount, including listening to and following up on employee concerns.
Regardless of the positions of the General Counsel or whether or not the Board adopts them, preventative measures such as a strong employee relations program will help ensure that employees do not seek the advice or third-party advice.
This is vital because once the organizing campaign has begun, it can be difficult to stop the bandwagon towards organizing, aided by the current NLRB and its general counsel.
About the Author: Christopher Henderson is an Associate in the Labor and Employment Department of Berchem Moses PC. He represents public sector employers in major employment disputes and has extensive experience in public sector labor relations.