“‘I don’t care how many cards you’ve got. I just don’t like it,’” said White, ventriloquizing the position of an employer.
“That’s right,” Manoli replied.
No one knows for sure why Manoli misstated the board’s position — but regardless of his true motives, his arguments stuck. In its decision in Gissel, the Supreme Court concluded that the NLRB had abandoned Joy Silk altogether and put forward a new standard according to which the board would in general only issue bargaining orders if it could prove that an employer had committed “outrageous” or “pervasive” unfair labor practices that made the conduct of a fair election unlikely or impossible. Two years later, in 1971, Richard Nixon’s NLRB formally amended its policy to align with the court’s decision in Gissel, indicating in a written decision that it would no longer inquire into employers’ good faith — or lack thereof — when deciding whether to issue a bargaining order to an employer who declined to recognize a card check.
Half a century later, this episode has taken on new relevance as the labor movement and its allies in the Biden administration seek to correct Manoli’s mistake. In April, Jennifer Abruzzo, President Joe Biden’s choice to serve as the NLRB’s general counsel, filed a brief in an ongoing dispute before the NLRB recommending that the five-member board readopt Joy Silk as its governing policy. (The brief makes only passing mention of Manoli’s role in the end of Joy Silk, noting in a footnote that “the Associate General Counsel misrepresented controlling Board law regarding the Joy Silk doctrine” during oral arguments in Gissel.) The board, composed of three Democratic-appointed members and two Republican-appointed members, is expected to issue a decision on Abruzzo’s recommendation in the coming months.
For many labor advocates, reinstating Joy Silk would be the first step toward addressing the lasting consequences of Manoli’s reversal. Today, it remains virtually impossible for unions to receive recognition via card check, forcing workers to rely instead on the more protracted and legally-complex process of a board-supervised election. According to some labor experts, the election process in the post-Joy Silk era remains weighted heavily in favor of employers, who are able to use an array of unfair practices to disperse support for a union without triggering a bargaining order under the Gissel standard.
“It’s striking to look at the surge in unfair labor practices that basically started precisely after 1969,” says Brian Petruska, general counsel at LIUNA Mid-Atlantic Regional Organizing Fund and the author of a 2017 article about the Joy Silk doctrine for the Santa Clara Law Review that Abruzzo cites in her brief. “What [the data] shows is that the situation has continued to get worse.”
Against this background, Manoli’s performance before the Supreme Court holds more than merely antiquarian interest. In a policy area that’s often assumed to be governed by impersonal economic laws and abstract market forces, the end of Joy Silk is the rare instance where a major change in labor law can be traced more or less directly to the actions of a single individual. If Manoli’s decision to abandon Joy Silk in March 1969 contributed to the presently anemic state of the labor movement, then what possibilities could its readoption hold for the movement’s future?
The Joy Silk doctrine emerged in 1949 from the board’s decision in Joy Silk Mill, Inc. and the United Textile Workers of America, a dispute involving a group of textile workers from the Joy Silk Mill in Hartsville, South Carolina. The legal backdrop to the decision had been set two years earlier, in 1947, when Congress amended the National Labor Relations Act (NLRA) of 1935 to remove a provision that allowed the NLRB to certify a union by means other than an election — including via card check. At the Joy Silk Mill, a group of workers had requested union recognition from the mill’s management after securing authorization cards from a majority of their bargaining unit. The mill’s managers had denied their request, insisting on an NLRB-supervised election to prove the union’s majority status.
In its decision, the board ruled in favor of the workers, finding that, under the unamended sections of the NLRA, employers were obligated to negotiate in good faith with a union that had been “designated” by a majority of workers, even if the union had not received formal certification through a formal election. To enforce that obligation, the board would issue bargaining orders to employers who refused to recognize a union that represented a majority of workers without “good faith doubt” as to the union’s majority status.
The board continued to enforce that standard for close to two decades after the Joy Silk decision, with only minor alterations. In 1966, the board amended its decision to shift the burden of demonstrating good faith from the employers to the board’s general counsel, meaning that the general counsel had to prove that an employer was acting without a good faith doubt before the board would issue a bargaining order.
Over time, however, the requirement that the board attempt to divine employers’ true intentions created some thorny legal problems. Although the board’s general counsel could sometimes point to specific actions as unambiguous proof of an employer’s bad faith — the most obvious example being union-busting tactics and other ULPs designed to weaken support for a union — there remained a more ambiguous set of situations that did not map easily onto the framework of the modified Silk Joy doctrine.
Chief among these situations was one in which an employer, while not publicly indicating any doubt that the union represented the majority will of the workers, merely expressed a preference for a board-supervised election over a card check. In cases like these, the NLRB was forced to sift through the exact words that an employer had used when declining to recognize the union, searching for minute linguistic indicators of bad faith. This practice contributed to employers’ impression that the modified Joy Silk doctrine merely amounted to a requirement that they use the right language when declining to recognize a union formed by card check — a condition that some employers claimed violated their First Amendment right to free speech.
Indeed, it was in response to this precise set of hypotheticals about Joy Silk’s “good faith test” — posed by Justice White during the oral arguments in Gissel — that Dominick Manoli claimed that the board had already abandoned the test altogether. As Petruska wrote, “Manoli chose to avoid being ensnared by this thicket with a simple denial that the thicket existed.”
According to witnesses of the oral arguments in Gissel, Manoli’s about-face was so apparent that it shocked union representatives and delighted Gissel’s attorneys, who reportedly asked for a written record of Manoli’s remarks to use in future cases. On the other side of the bench, the justices struggled to make sense of Manoli’s position, which flatly contradicted the arguments that the board had submitted in its written briefs. After pressing Manoli to clarify his position, Justice White eventually threw up his hands, saying, “[Your position] certainly doesn’t emerge from your briefs in this case.”
In 2005, after surveying the case file and interviewing the surviving participants in the case, the law professors Laura Cooper and Dennis Nolan concluded that Manoli likely deliberately misstated the NLRB’s position to avoid a knotty hypothetical about Joy Silk’s application. On a more cynical reading, Manoli blatantly lied in order to present his own policy preferences as the position of the NLRB.
Today’s advocates of Joy Silk propose getting around the issue that tripped up Manoli by returning to the original, unamended version of the doctrine, according to which employers must affirmatively demonstrate a good faith doubt about a union majority when declining to recognize the results of a card check. In evaluating an employer’s demonstration of a good faith doubt, Abruzzo wrote in her April brief, the board should “consider all relevant circumstances, including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct” — a much lower evidentiary standard than Gissel’s requirement that the board find evidence of “substantial unfair labor practices.”
In practice, says Petruska, the return of Joy Silk could have far-reaching consequences for the labor movement.
“I think it would cause union organizing drives to accelerate dramatically … and because there will be fair elections, I do think you’re going to see better outcomes in the elections that are held,” he says.
Since Abruzzo submitted her brief in April, the labor movement’s opponents have come out forcefully against Joy Silk, denouncing Abruzzo’s recommendation as part of a broader effort by the Biden administration to rewrite labor law by bureaucratic fiat. In an op-ed in The Wall Street Journal in April — entitled “Jennifer Abruzzo’s Plan to Abolish Union Elections” — Mark Mix, the president of the National Right to Work Legal Defense Foundation, castigated Abruzzo’s position as “cynical and hypocritical,” claiming that the readoption of Joy Silk would “eliminate elections” and “let union organizers solicit ‘votes’ through in-person pressure.”
Joy Silk’s supporters, meanwhile, argue that it’s unlikely that readopting the doctrine would lead to an explosion of card checks. Instead, says Petruska, it would simply put teeth behind the NLRB’s ability to combat the sort of unfair labor practices that employers use to suppress organizing drives in their early stages, leading to an overall increase in board-supervised elections rather than a decrease.
“Gissel provides a variety of ways that the employer can commit a number of [unfair labor practices] to intimidate the workforce and have confidence that it can litigate to a conclusion that will not involve it recognizing the union,” says Petruska. But under Joy Silk, he says, the threat of a bargaining order would theoretically disincentivize employers from committing those same tactics: “The employer wants to avoid bargaining with the union, and if the result of illegal practices is that they will be ordered [by the NLRB] to bargain with the union, then the illegal practices themselves become counterproductive.”
The historical record appears to be on the side of Joy Silk. During the period between 1949 and 1969, when the doctrine was still in effect, the average number of board-supervised elections per year actually increased, reaching over 8,000 per year in the late 1960s. (By contrast, the board conducted around 1,000 certifications elections in 2021). And throughout this period, only a small fraction of unions were formed via card checks rather than through formal elections. In 1968, for instance, only 3.6 percent of new unions gained recognition via card check rather than through secret-ballot elections.