General Counsel of NLRB Seeks to Insist on Private Ballot Election

The General Counsel of the National Labor Relations Board (“NLRB”) recently advocated that the Board should return to the Joy Silk doctrine, which held that, under certain circumstances, employers faced with a demand for union recognition may be required to recognize and bargain with the union even if the absence of a union election victory unless the employer has a “good-faith doubt” that a majority of workers support the union.

In 1975, the NLRB abandoned the Joy Silk doctrine, ruling that employers do not violate the National Labor Relations Act (“NLRA”) by insisting on an election rather than granting recognition based on the union’s claims of majority support. Indeed, under current precedent, an employer has the right to insist on an election and may only be forced to recognize and bargain without an election if the NLRB determines that a fair election is highly unlikely or impossible due to unfair labor practices that have occurred during the pre-election period. However, if it chooses, the employer does also have the right to accept the union’s majority support claims based upon signed authorization cards from the employees.

For almost a century, the private ballot election process has been one of the hallmarks of United States labor law. Using this process, employees have the right to decide whether they wish to be represented by a union, and it is designed to allow each employee to vote anonymously and privately. During the election, a representative from the NLRB is present to oversee and ensure – to the extent possible – that the election is conducted free from both employer and union interference. Any election is preceded by a brief period of time in which employers and unions attempt to sway voters into their respective camps. Some unions do not like the election process because support often erodes over the campaign period, as both sides presents points on the advantages and disadvantages of union representation.

The General Counsel has argued that a return to the Joy Silk doctrine is necessary because the current standard has led to an increase in unfair labor practices during the pre-election period for few consequences for an employer that then wins a union election. While this position is debatable, a return to the Joy Silk doctrine would mark a significant shift in United States labor law. It would likely make it easier for unions to organize and more difficult for employers to insist upon a private ballot election. In some cases, employees may also lose the right to vote in a private ballot election.

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