Viewpoint: Voluntary Recognition of a Union Soon May No Longer Be Voluntary

​What would you do if you were presented with union cards signed by a majority of your employees? If you've been taught well, you'd know to not look at the cards and to demand that an election be held. But if National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo has her way, employers will lose this right. In fact, employers will be forced to recognize the union and begin bargaining without ever letting their employees vote for or against the union.

Abruzzo is seeking to convince the NLRB to resurrect a board standard that was rejected more than 50 years ago: the Joy Silk doctrine. The Joy Silk doctrine would drastically alter 21st century unionization efforts, enabling unions to bypass union elections in nearly all cases.

What Is the Joy Silk Doctrine?

The Joy Silk doctrine is an antiquated NLRB rule that forces employers to bargain with the union once they receive union cards signed by a majority of their employees. The only exception is if the employer can demonstrate good-faith doubt as to majority status of the union. Currently, employees have a right to determine union representation by a secret-ballot election, which is waived only if employers commit gross unfair labor practices serious enough to make a fair election impossible. Reviving the Joy Silk doctrine would be a monumental shift that would decimate employers' rights.

If Joy Silk is reinstated, employers cannot insist on elections unless they have good-faith doubt about the majority status of the union.

What Is Good-Faith Doubt?

Good-faith doubt is demonstrable evidence that the union does not have majority support of an employer's workers at the time the union makes its demand to be recognized. This means employers cannot rely on gut instinct or conversations with a minority of employees. Not even evidence of unfair union pressure may be sufficient to cast good-faith doubt on the union majority. In fact, some old cases held that even certain misrepresentations made by the union to employees are not sufficient to assert good-faith doubt.

Proving Good-Faith Doubt

Below is our four-step strategy for establishing that good-faith doubt exists:

1. Maintain a clear denial of union majority. An employer should maintain a clear denial of the union majority from the moment it learns of union activity until the election is held. If the employer is caught admitting it believes the union has the majority support of employees, it will lose any ability to assert good-faith doubt. In other words, if it comes out that the employer told someone that it believes the union has the majority, the employer probably is going to have to bargain with the union without ever holding a union election.

2. Do not ever express doubt about the denial of the union's majority status. This second point is an extension of the first: Avoid all conversations about the union majority status. If the employer is caught saying something incriminating, that statement can be used against the employer and may result in the company being forced to begin union bargaining.

3. Understand and avoid unfair labor practices. It is imperative that the senior management team understands what unfair labor practices are. Unfair labor practices (ULPs) are violations of the federal law involving unions. These violations are often called "TIPS," which stands for prohibited threats, interrogation, promises and surveillance, as well as spying on any nonsupervisory employee in response to union activity.

Understanding what ULPs are is obviously not enough; the senior management team also must know how to avoid them. Any ULP can be construed by the NLRB as the company exhibiting bad faith. If the company is showing bad faith, the board can conclude that that is what motivated the refusal to recognize the union, and thus the employer lacked a genuine good-faith doubt about the union majority.

4. Express good-faith doubt immediately. Even if an employer does all of the above, it must be ready to articulate its good-faith doubt to the union immediately and later, if litigation ensues, to a judge.

If the employer engages with employees frequently and they convey they don't believe the company needs a union or they don't want one, this may be evidence enough to warrant good-faith doubt.

If there are visible signs that the union lacks support, this may also allow the employer to assert good-faith doubt. Some examples include union strikes with remarkably low turnout, posters around the workplace indicating a lack of union support or any other open indications that employees are not supporting the union.

Good-faith doubt also can be based on certain kinds of significant illegal or fraudulent union activity. For example, if an employer has serious grounds for believing the union forged documents, this can constitute good-faith doubt. Remember, it cannot be a baseless accusation. There must be evidence the employer is aware of at the time the union presents it with the union cards.

If enough employees tell the employer that the union retained their signatures by threatening them, that may be cause for good-faith doubt. However, the union must have procured enough cards through fraud, force or threats that it would lose the majority.

How Do I Avoid All of This?

An employer should vigilantly look for signs of union activity. Company leaders who want to avoid creation of a union should tell the entire staff of the good things the employer does and how it has done all this without a union. An employer that doesn't want a union should explain why it thinks unions would be detrimental to its employees. By doing this, you may create good-faith doubt should a union demand recognition and the Joy Silk doctrine be revived.

Robert G. Brody and Luis A. Torres are attorneys with Brody and Associates, which is based in Westport, Conn.