Tuesday, May 24, 2016
I just learned that Brian Petruska (General Counsel of the Laborers' Mid-Atlantic Regional Organizing Coalition), just posted on SSRN his forthcoming piece in the Santa Clara Law Review on the proposed use of the Joy Silk doctrine. The abstract is below:
This article argues that the Labor Movement should adopt a strategy of moving the National Labor Relations Board to revive the doctrine of Joy Silk Mills, a 77-year old doctrine that has lain moribund for over forty-five years. Under the Joy Silk doctrine, a union could obtain a bargaining order from the NLRB whenever it obtained authorization cards from a majority of an employer’s employees and requested recognition from the employer only to have the employer refuse recognition and then proceed to commit unfair labor practices. The article presents analytical, policy-based, and empirical arguments in support the NLRB readopting the doctrine of Joy Silk Mills, arguing that its abandonment substantially contributed to a dramatic increase in unfair labor practices, which depressed the rate at which unions organized new members through NLRB-conducted elections. The article also argues that the NLRB has legal authority to restore Joy Silk as current doctrine. The article recommends that the Board make two changes to the Joy Silk doctrine to better accommodate employer free-speech rights and employee access to the secret ballot. Finally, the article argues that this change would constitute game-changing reform of U.S. labor law, arguing that the abandonment of Joy Silk heavily contributed to the increase in ULPs during union organizing drives and the subsequent reduction of organizing victories by unions.
The article provides an interesting new take on a doctrine that has been around for decades, and is definitely worth a read if you are working or researching in this area.