The Good-Faith Doubt Test and the Revival of Joy Silk Bargaining Orders

Brandon R. Magner* March, 2023

Abstract

The last fifty-two years have borne witness to the swift degradation and virtual irrelevance of the bargaining order. By the end of the twentieth century even pro-enforcement officials in the NLRB were acknowledging the difficulty of obtaining an enforceable bargaining order, and the remedy rarely appears these days in the agency’s published decisions.

This is not the product of the usual economic or political factors cited as reasons for the labor movement’s and its attendant regulating schema’s diminishment. Rather, the decline of the bargaining order can be explained almost entirely by the disappearance of the so-called Joy Silk doctrine from the labor law landscape in 1969. Under Joy Silk, the NLRB would order an employer to recognize and bargain with a labor union if the union represented a majority of the employees in an appropriate bargaining unit at the time it requested recognition, and the employer denied the request while lacking a good faith doubt as to the union’s majority status and took action calculated to dissipate that majority status. Under closer examination, it has become clear that the NLRB’s abandonment of the good-faith doubt test in favor of the misconduct-centric analysis enunciated in Gissel Packing is intimately connected to the agency’s inability to enforce the law and, as a result, fulfill its statutory mission of encouraging collective bargaining.

This Article addresses the primary objections to the NLRB’s use of the good-faith doubt test in the realm of union requests for recognition that were raised in its heyday and elucidates their lack of historical, legal, and practical foundations. The NLRB’s inquiry into motive in the pre-recognition context was statutorily permissible, logically consistent, and effectively deterrent. Reviving the good-faith doubt test of Joy Silk and enforcing Section 8(a)(5) of the NLRA as written would better encapsulate the bargaining orders envisioned in past Supreme Court precedent and equip the NLRB with a tool historically proven to prevent misconduct in elections.

Introduction

The National Labor Relations Act is considered a broken statute. Decades of criticism of the United States’ keystone federal labor law have produced a rock-solid consensus among the field’s scholars: the law fails to prevent the wrongdoing for which it was designed to address, and it cannot adequately remedy those wrongs once committed.¹ Legislative attempts to strengthen the statute have perennially failed, regardless of the scope of the changes sought,² and administrative efforts have proven either fleeting or ineffective.³ What remains is a legal apparatus that relies largely upon voluntary compliance, armed with little more than the bare threat of litigation costs and reputational harm.⁴

This precarious state of affairs could suggest that the statute’s path to impotence was inevitable due to fatal flaws in its design. Indeed, many eminent commentators have argued just that.⁵ But it is possible that this historical prognostication is overstated. Perhaps the law retains much of its past vitality but—like other pioneering progressive legislation—has fallen victim to anti-enforcement impulses amongst American regulators over the last half-century.⁶

Early expressions of the law’s potency are not difficult to find. Consider this excerpt from one of the first labor law cases to reach the Supreme Court:

It is for the Board not the courts to determine how the effect of prior unfair labor practices may be expunged. That determination the Board has made in this case and in similar cases by adopting a form of remedy which requires that an employer bargain exclusively with the particular union which represented a majority of the employees at the time of the wrongful refusal to bargain despite that union’s subsequent failure to retain its majority. The Board might well think that, were it not to adopt this type of remedy, but instead order elections upon every claim that a shift in union membership had occurred during proceedings occasioned by an employer’s wrongful refusal to bargain, recalcitrant employers might be able by continued opposition to union membership indefinitely to postpone performance of their statutory obligation. In the Board’s view, procedural delays necessary fairly to determine charges of unfair labor practices might in this way be made the occasion for further procedural delays in connection with repeated requests for elections, thus providing employers a chance to profit from a stubborn refusal to abide by the law. That the Board was within its statutory authority in adopting the remedy which it has adopted to foreclose the probability of such frustrations of the Act seems too plain for anything but statement.⁷

This passage, written by Justice Hugo Black in a unanimous opinion enforcing an order by the National Labor Relations Board (NLRB, Labor Board, or the Board), is one of the clearest endorsements of the federal government’s authority to remedy violations of labor law. The Court deferentially appraised the NLRB’s expertise in the fact-intensive world of industrial relations and accurately delineated the agency’s reasoning for adopting the specific remedy at issue, leaving no room for ambiguity as to why the Court was approving the government’s position. The decision, barely a thousand words in length when cleaved of citations, was evidently not a difficult one.

A new student of federal labor law as developed under the National Labor Relations Act (NLRA or the Act) and its amendments⁸ could thus hardly be faulted for reading Justice Black’s language and presuming that the remedy the Court canonized—an order for an employer to bargain with the majority representative of its employees despite that majority status not having been certified by means of a secret-ballot election, more colloquially known as a bargaining order—would become an indispensable weapon in the NLRB’s administrative arsenal for deterring employer wrongdoing. While this held true for the quarter-century of case law that followed the Frank Bros. decision, the last fifty-three years have borne witness to the swift degradation and virtual irrelevance of the bargaining order. By the end of the twentieth century even pro-enforcement officials in the agency were acknowledging the difficulty of obtaining an enforceable bargaining order,⁹ and today the remedy rarely appears in the Labor Board’s published decisions.

The under-utilization of this remedy is not the product of the usual economic or political factors cited as reasons for the labor movement and its attendant regulating schema’s diminishment. Rather, the decline of the bargaining order can be explained almost entirely by the disappearance of the so-called Joy Silk doctrine from the labor law landscape in 1969.¹⁰ Under the Joy Silk doctrine, the NLRB would order an employer to recognize and bargain with a labor union if the union represented a majority of the employees in an appropriate bargaining unit at the time it requested recognition, and the employer denied the request while lacking a good faith doubt as to the union’s majority status and took action calculated to dissipate that majority status.¹¹ This more or less described the Labor Board’s practice for the first two decades of the Taft-Hartley Act, until the good-faith doubt test was abandoned (in a manner of speaking)¹² by the Board at oral argument of the Gissel Packing case.¹³ Shedding the “thicket” of any inquiry into employers’ state of mind, the resulting Gissel brand of bargaining orders generally are only issued where an employer’s unlawful conduct is so “outrageous” and “pervasive” so as to make the holding of a fair election impossible.¹⁴ This shift in the law, vociferously lobbied for by many pillars of the mid-century labor bar, resulted in an explosion of employer unfair labor practices and widescale desertion of the NLRB’s election machinery.¹⁵ Notwithstanding this inversion of its statutory mission,¹⁶ no serious push was made by the agency to resuscitate the good-faith doubt test for employer refusals to bargain with unions that had requested recognition but not obtained certification through a Board election. Gissel remained frozen as precedent regardless of its efficacy, having almost immediately crystallized bargaining orders as an “extraordinary” remedy of last resort.¹⁷

The ice may have finally begun to thaw on August 12, 2021 when Jennifer Abruzzo, the newly-confirmed General Counsel nominated to the position by President Joseph Biden Jr., released a memorandum which, among many other agenda items, cited Joy Silk as an “initiative” she would “carefully examine” and directed the NLRB’s regional staff to seek out cases for agency coordination which fit the traditional good-faith doubt fact pattern.¹⁸ Given the historical context of General Counsels’ debut memoranda, which typically serve as a platform of sorts for the policies to be pursued and the decisions to be overturned during the life of their respective terms,¹⁹ it is safe to assume that Joy Silk is once again the official prosecuting policy of the General Counsel’s office and, by extension, the Labor Board’s regional offices. This would represent a seismic shift in the law governing the customs of union recognition requests to be felt by parties and counsel alike; few if any labor lawyers today have ever practiced under the Joy Silk doctrine.²⁰

Of course, this General Counsel will not be writing on a clean slate. The good-faith doubt test was immensely controversial by the time it was being vigorously enforced in the 1960s. Commentary published in law reviews, trade journals, and congressional hearings almost unanimously derided the Kennedy Board’s handling of the case law as subjective, simplistic, naïve, and worse. Indeed, it is difficult to find a single contemporaneous scholar or practitioner who defended the Joy Silk doctrine on its merits. This is an astonishing fact of history—not only because agreement is famously rare amongst the warring factions of labor law,²¹ but because good faith doubt was always the more coherent framework for bargaining order remedies and faithful application of the NLRA’s text than the favored standard which ultimately culminated in the Supreme Court’s Gissel decision.

This Article, then, is the first attempt to respond to the critical scholarship at length and defend the Joy Silk doctrine on its substantive laurels.²² Section I recounts the history of the bargaining order remedy from the earliest days of the Wagner Act through its maturation under the Taft-Hartley Act in the form of the good-faith doubt test, until the test’s unceremonious departure without the deliberation of administrative adjudication. Section II explores the modern ecosystem of bargaining orders in the wake of the stricter Gissel test, noting the endangered status of this remedy and its deleterious effects on the NLRB’s twin responsibilities of remedying unfair labor practices and holding elections that “determine the uninhibited desires” of employees “under conditions as nearly ideal as possible.”²³ Section III recapitulates the various objections levied against the Joy Silk doctrine during the late 1960s debate over whether the Labor Board could compel an employer to recognize and bargain with a union based solely on authorization cards and rejects them as legally and logically insufficient, asserting that the good-faith doubt test is the superior vehicle for enforcing federal labor law compared to the bargaining order-analysis which followed. The Article concludes by welcoming the long-overdue revival of the Joy Silk doctrine and situating the remedy within the modern legal landscape.

I. The History of NLRB Bargaining Orders and the Good-Faith Doubt Test

A. The Origins and Establishment of the Bargaining Order Remedy

The NLRA speaks in remarkably broad terms regarding an employer’s duty to bargain with a union. Section 8(a)(5) of the Act makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).”²⁴ Section 9(a) in turn defines a “representative” as one “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes[.]”²⁵ This language has remained substantively unaltered since the Act’s original passage in 1935²⁶ and is buttressed by the statute’s explicit encouragement of collective bargaining as an engine of national labor policy.²⁷ The statute thus makes clear that an employer, when presented with a demand for collective bargaining by the majority representative of its employees, must bargain with that representative, but left the NLRB and federal courts responsible to give effect to key components of this duty. Chief among these unfilled gaps was when—if ever—an employer would be obligated to bargain with a union that claimed to possess a majority of employees but had not demonstrated that support through an election, the Act’s only specified method for certification.²⁸

The NLRB would answer this question by regularly certifying unions through means other than a secret-ballot election in its first years of operation, sanctioning tallies of signed authorization cards, membership applications, strike and picket-line participation, and other vectors of majority support.²⁹ This practice prompted fierce opposition from employers, political conservatives, a skeptical press, and even many established unions,³⁰ persuading the Board in Cudahy Packing to forswear any path for certification other than elections.³¹ The Taft-Hartley Congress, intent on making this policy permanent, amended Section 9(c) to render elections the sole option for Board certification.³²

But the NLRA did not speak exclusively in terms of certification. Sections 8(a)(5) and 9(a) referred to representatives that were “designated or selected” by a majority, conspicuously opening the door for Board-ordered bargaining in resolutions of unfair labor practice cases where unions could “produce satisfactory evidence of a majority.”³³ That is to say, the statute from its inception appeared to contemplate the possibility that a union could obtain recognition where wronged through an employer’s unfair labor practices, even if it had not demonstrated majority support by winning a secret-ballot election prior to adjudication of the charges.

The Cudahy Packing decision was silent on this language, but the Supreme Court shortly thereafter approved the practice of Board-ordered recognition of unions that were victims of unlawful refusals to bargain. In NLRB v. Bradford Dyeing Association,³⁴ the Court upheld the NLRB’s findings that the employer unlawfully dissipated the charging union’s majority by firing union supporters and creating a company-dominated labor organization. The Labor Board had restored the union’s majority and ordered the employer to recognize and bargain with the union, rejecting the argument that its order was forcing a bargaining representative on an unwilling majority.³⁵ In enforcing the Board’s order in full, the Court clearly established the agency’s authority to issue bargaining orders in cases where the employer’s unfair labor practices had destroyed a union’s majority. It is worth noting that majority status in this case had been denoted by membership application cards, and no issue of certification (versus “designation” or “selection”) was raised.³⁶

Consistent with its deferential posture to the NLRB’s early crafting of industrial policy,³⁷ the Court gave the agency great leeway in determining when, if ever, elections were required to establish majority status in the face of unremedied unfair labor practices. In NLRB v. P. Lorillard Co.,³⁸ the Court summarily reversed a judgment from the Sixth Circuit which held that the passage of time and emergence of a rival labor organization since the Labor Board first ordered the employer to bargain with the charging union necessitated an election to reassess the latter’s majority status.³⁹ Chiding the lower court that it was “for the Board to determine” what remedy of the employer’s refusal to bargain would best effectuate the policies of the NLRA—citing Bradford Dyeing Ass’n as the lead case for this proposition—the Justices nixed the Sixth Circuit’s modification of the Board’s order and enforced the original order in full.⁴⁰ Once again, the union’s majority status was based upon membership application cards,⁴¹ which the Court deemed sufficient to constitute a “duly selected bargaining representative” of the employees in question.⁴²

However, the question of whether an employer must recognize and bargain with a union which had lost its majority status for reasons ostensibly unrelated to the employer’s initial refusal to recognize was left unresolved. The Supreme Court’s solution through Frank Bros. Co. v. NLRB⁴³ served as a template for the “modern” bargaining order. In that case, the charging union obtained signed cards from forty-five of the eighty employees working in the employer’s factory and requested recognition and bargaining.⁴⁴ After its overtures were denied the union filed a petition with the NLRB for an election; the employer subsequently engaged in an “aggressive” anti-union campaign which included threats of plant closure if the union won the election.⁴⁵ The union withdrew its election petition and instead filed unfair labor practice charges, which, after seven months, resulted in the Labor Board issuing a complaint against the employer which alleged an unlawful refusal to bargain.⁴⁶ In challenging the appropriateness of the proposed bargaining order remedy, the employer proffered evidence that the union no longer possessed a majority because thirteen of the original supporters had left the factory and were replaced by new hires after the filing of the charges.⁴⁷ Unlike the facts of Bradford Dyeing and P. Lorillard Co., this loss of majority was not alleged to be the direct product of unlawful discharges or other employer coercion; the Court apparently assumed arguendo that these resignations occurred “in the normal course of business.”⁴⁸

Justice Black, enforcing the NLRB’s order for the employer to recognize and bargain with the union, emphatically defended the agency’s decision to peg the union’s majority status to the date of the employer’s unlawful refusal to bargain.⁴⁹ Rejecting the employer’s attempts to distinguish the employee resignations from the employer’s rejection of the collective bargaining principle, Justice Black invoked the Labor Board’s tenet that an “unlawful refusal of an employer to bargain collectively with its employees’ chosen representatives disrupts the employees’ morale, deters their organizational activities, and discourages their membership in unions.”⁵⁰ Justice Black dispensed with any notion that the remedy visited an injustice upon the employees “who may wish to substitute for the particular union some other bargaining agent or arrangement” by pointing out that a bargaining order does not “fix a permanent bargaining relationship” upon the shop.⁵¹

Thus, before the end of World War II, the Supreme Court issued three unanimous decisions within a four-year span enforcing NLRB bargaining orders in which signatures alone served as evidence of employees having designated or selected unions as their respective bargaining representatives. These cases definitively established that under the Wagner Act, the Labor Board possessed the statutory authority to compel an employer to recognize and bargain with a union that had not demonstrated its majority status in a secret-ballot election, even if the union had lost its majority since the time of the initial recognition request either because of the employer’s independent unfair labor practices or simply from administrative inertia. It remained less clear, however, under what conditions an employer would be required to recognize a union at the time it claimed support from a majority of the employer’s employees. It was also uncertain what events would preclude an employer who escaped this initial obligation from relying on an election to test the union’s majority. It would fall on the NLRB to weave these seemingly disparate threads into the nascent patchwork of national labor policy.

B. Constructing and Institutionalizing the Good-Faith Doubt Test

The NLRB did not have to look far to find a suitable application of the bargaining order remedy. While the good-faith doubt test would become synonymous with the Joy Silk decision,⁵² the Labor Board applied primitive versions of it throughout the 1940s. And like so many aspects of foundational American law, the test’s origins and eventual popularization can be fairly credited to Learned Hand’s judicial reasoning. Tasked with substantiating the agency’s rather conclusory finding of the employer’s unlawful refusal to bargain in the famous Remington Rand case,⁵³ the Second Circuit enforced the Board’s order in full and lent intellectual support to the broad condemnations of industrial obstinacy.⁵⁴ Judge Hand elaborated upon an employer’s duty to bargain at great length:

The [NLRB] was certainly free to find that the respondent had been guilty of “unfair labor practices,” for it obviously meant not to confer with the [union] . . . . The respondent answers that it had no official or conclusive information that the [union] was the duly accredited bargaining representative of the men, and that it could not have had until the Labor Board had itself so decided. The Labor Board does indeed have that power, section 9(c), 29 U.S.C.A. § 159(c), and when there is a real doubt, we may assume arguendo that the employer need not decide the issue at his peril; faced by two sets of putative representatives, each claiming to be the properly accredited one, it would seem fairly plain that he need not choose at his peril, especially if he is not allowed to take a vote himself. The same is equally true, though only one set makes the claim; he may be in genuine doubt how many it represents. If he cannot satisfy himself of their credentials, and if he cannot by informal appeal to the Labor Board invoke its power, it would certainly seem that he should be free not to recognize either; but from that immunity it does not in the least follow that he need be satisfied with no evidence except the Board’s certificate; it may be entirely apparent from other sources that one set really represents the majority. In the case at bar even though the respondent were in doubt as to the [union]’s authority, that doubt did not excuse it; for it is quite plain that its position was not based upon any doubt, but upon its unwillingness to treat with “outside” representatives of its employees; that is to say, to recognize the solidarity of the craft as such. The greater included the less, and having taken that position, it may not now say that it could not know whether the [union] was properly accredited. Had that been the real reason for its refusal, presumably it would have been persuaded by the evidence which the [union] could have presented. It made no effort to learn the facts and took the chance of what they might be.⁵⁵

In this passage, Judge Hand determined that an employer presented with a request for recognition from an organizing union had no automatic escape from bargaining through the NLRB’s election machinery (“the Board’s certificate”), presciently tracing the same path the Supreme Court would trek in its Bradford Dyeing, P. Lorillard Co., and Frank Bros. trio of decisions. Judge Hand allowed only two exceptions to this general duty: (1) where an employer was faced with competing claims of majority status from multiple unions;⁵⁶ or (2) where an employer held a “genuine” or “real” doubt of the organizing union’s majority status such that “he cannot satisfy himself of their credentials.” Because the employer “made no effort learn the facts” of the union’s majority—for example, by reviewing the veracity of the union’s cards—and instead refused to deal with the union under any circumstances, the employer was guilty of an unlawful refusal to bargain. Post-hoc demands for the Labor Board’s certification process would not free him of his obligation.

The next major development came again from the Second Circuit. In NLRB v. Dahlstrom Metallic Door Co., Judge Charles Edwards Clark upped Judge Hand’s ante and castigated the certification-only bargaining argument as “frivolous,” for “[a]n employer is under a duty to bargain as soon as the union representative presents convincing evidence of majority support.”⁵⁷ Citing Remington Rand, Judge Clark held that the charging union’s tender of authorization cards from 295 employees of the 310-person bargaining unit constituted “ample evidence” of majority status and the employer “could not in good faith” ignore the union’s request for recognition.⁵⁸ The Second Circuit unanimously upheld the NLRB’s finding of an unlawful refusal to bargain and enforced the bargaining order remedy despite the lack of any independent unfair labor practices committed by the employer following the union’s initial request for recognition.⁵⁹

The Second Circuit’s ruminations on an employer’s motive in the recognition-request context quickly percolated through the NLRB’s decisions. The Labor Board would variously describe an employer’s necessary mindset as one of “genuine”,⁶⁰ “honest”,⁶¹ “reasonable”,⁶² or even a “bona fide” doubt⁶³ when presented with a union’s claim of majority status, and the judiciary responded in kind.⁶⁴ But in the latter years of the 1940s, and notably following the Taft-Hartley Act’s codification of the parameters of collective bargaining in Section 8(d),⁶⁵ the NLRB coalesced towards “good faith” as the benchmark for a permissible level of suspicion.⁶⁶ This was cemented as the agency’s test for bargaining order remedies in 1949 when, by way of the Joy Silk case, the Labor Board finally corralled its case law:

We have previously held that an employer may in good faith insist on a Board election as proof of the Union’s majority but that it “unlawfully refuses to bargain if its insistence on such an election is motivated, not by any bona fide doubt as to the union’s majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union.” In cases of this type the question of whether an employer is acting in good or bad faith at the time of the refusal is, of course, one which of necessity must be determined in the light of all relevant facts in the case, including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct.⁶⁷

This synthesis of the good-faith doubt test would receive fulsome approval from the reviewing District of Columbia Circuit.⁶⁸ While stipulating that the NLRB’s election processes may provide the good-faith employer “a determination of whether or not the union does in fact have a majority and is therefore the appropriate agent with which to bargain,” the D.C. Circuit—citing Remington Rand—endorsed the Board’s chief policy argument: “it is not one of the purposes of the election provisions to supply an employer with a procedural device by which he may secure the time necessary to defeat efforts toward organization being made by a union.”⁶⁹ The court proceeded to enforce the Labor Board’s bargaining order despite the union having lost a secret-ballot election, holding that the remedy in this context was “amply sustained by precedent” in the Bradford Dyeing, P. Lorillard Co., and Frank Bros. trilogy of cases.⁷⁰ Moreover, the court determined there was substantial evidence in the record to support the Board’s finding that the employer lacked good faith doubt of the union’s majority at the time of the original request for recognition and thus had unlawfully refused to bargain under Section 8(a)(5).⁷¹

The D.C. Circuit’s ratification of the good-faith doubt test spread like wildfire across its sister circuits. Such Joy Silk bargaining orders, as they soon became known, would be enforced in every extant federal court of appeals within a decade, usually in perfunctory fashion.⁷² The core tenets of the Joy Silk doctrine would even gain tacit acceptance in the Supreme Court in 1956 when, in United Mine Workers v. Arkansas Oak Flooring Co., a seven-Justice majority cited a host of good-faith doubt cases for the proposition that “[a] Board election is not the only method by which an employer may satisfy itself as to the union’s majority status.”⁷³ The Court also more elaborately tied the “designated or selected” language in Section 9(a) to the nonelection context than it had in its previous bargaining order cases, finding that the union’s cards signed by 179 employees in the 225-person unit constituted a “conceded majority designation of the union.”⁷⁴ Crucially, if the union in the case had been eligible under the Labor Board’s unfair labor practice jurisdiction, “the absence of any bona fide dispute as to the existence of the required majority of eligible employees” meant that “the employer’s denial of recognition of the union would have violated § 8 (a)(5) of the Act.”⁷⁵

By the end of the 1950s the good-faith doubt test had been approved by every court possessing the plenary power to review it, an incredible achievement for the NLRB given the mixed success of the agency’s remedial experiments under Section 10(c).⁷⁶ Whatever one thinks regarding the merits of the test, it is clear that this was not a hastily constructed remedy foisted unilaterally upon the labor-management community by a zealous government agency. Instead, the good-faith doubt test was the consequence of years of deliberation between the Labor Board and the courts, spearheaded by one of the most esteemed jurists in all of American law⁷⁷ and bolstered by several unanimous Supreme Court decisions. The Joy Silk doctrine had been delivered into the world, and by any reasonable measure, it was a celebrated birth.

C. The Kennedy Board Fortifies the Joy Silk Doctrine

Though the good-faith doubt test encountered no discernible pushback in its early years, Joy Silk became limited in its usefulness as an organizing tactic not long into its lifespan. In what would become known as the Aiello doctrine, the Eisenhower Board prohibited the application of bargaining orders in cases where unions lost an election after previously alleging an unlawful refusal to recognize under Section 8(a)(5), restricting the remedy in such scenarios to a rerun of an election that had been set aside due to employer misconduct.⁷⁸ The inevitable result was that a union whose request for recognition had been rejected by an employer lacking a good faith doubt in the union’s majority status was forced to choose between two unenviable options: (1) forego its unfair labor practice charge and risk the union’s majority in a potentially tainted election,⁷⁹ or (2) cease its organizing efforts and proceed to trial, effectively putting its fate in the hands of NLRB decisionmakers amidst the often years-long process of unfair labor practice litigation.

While some justified Aiello under the logic of depriving unions a second bite at the Board’s administrative apple,⁸⁰ the decision to arbitrarily withdraw Section 8(a)(5)’s protections from unions based upon their decision to engage with the agency’s election machinery makes little sense as a companion to Joy Silk, which rests upon the foundation that an employer’s conduct following its refusal to recognize an organizing union may shed light on the nature of the refusal itself. Under this view, any required waiver of a meritorious Section 8(a)(5) charge derogated from the NLRB’s duty to enforce public policy in the form of good-faith bargaining.⁸¹ Aiello remained a hitch in Joy Silk’s gait from 1954 until 1964, when the Kennedy Board removed these self-imposed limitations in the case of Bernel Foam Products Co.⁸² The restoration of both the representation and unfair labor practice route as navigable channels for bargaining orders, previously urged by Congress,⁸³ naturally increased the prominence of the good-faith doubt test in the labor organizing terrain.⁸⁴

Two other developments in the early 1960s functioned as legal incubators for Joy Silk cases. First, the Kennedy Board developed the “independent knowledge” variant of the good-faith doubt analysis in Snow & Sons, which held that a bargaining order would issue even without the presence of independent unfair labor practices calculated to dissipate the union’s majority if the employer had confirmed the union possessed majority support but still refused recognition.⁸⁵ There, the employer reneged on an agreed-upon check of authorization cards after a third party authenticated the union’s majority status and insisted upon testing the results in an NLRB election, even though the employer did not doubt the accuracy or propriety of the card check.⁸⁶ While the Labor Board had never explicitly confined Joy Silk to cases in which separate violations of the NLRA were present, the practical reality of litigation meant that it was difficult for Board attorneys to prove that an employer lacked good faith doubt of a union’s majority status without the commission of unfair labor practices following the refusal to recognize.⁸⁷ Snow & Sons thus represented the Board’s perhaps mechanistic commitment to prosecuting the rare case in which an employer, by its own actions, vitiated itself of asserting any defense of uncertainty regarding its employees’ sentiments without engaging in conduct proscribed under Section 8(a)(1) or (3) of the Act.⁸⁸

Second, the Kennedy Board moved to reinstate authorization cards as a generally valid barometer of employees’ designation or selection of their bargaining representative for purposes of Section 9(a). Despite the Supreme Court’s unflinching approval of a card-based bargaining order in Frank Bros. and the prominent view that certification-only bargaining was a “frivolous” interpretation of the NLRA,⁸⁹ the Eisenhower Board had deemed authorization cards “unreliable as evidencing the employees’ considered desires” and strove to hold elections barring “extraordinary circumstances.”⁹⁰ The Kennedy Board not only rejected this rather pessimistic view of the average employee’s intelligence but also presumed that workers made rational and informed choices when affixing their name to an explicit request for collective bargaining.⁹¹ In Cumberland Shoe Corp., the NLRB held that an unambiguous card designating the union as the signed employee’s bargaining representative will be counted as a valid designation unless it is proven that the employee was told that the card’s sole purpose was to be used to obtain a secret-ballot election.⁹² The attractiveness of the Cumberland Shoe doctrine—which broadly permitted the campaign tactics unions had already engaged in for decades—was mostly in its practicality; it avoided the card-by-card adjudication of probing into the subjective intent of each signer which threatened to bog down trials held months or even years after the initial gathering of the card.⁹³

The combined ramification of the Kennedy Board’s Bernel Foam, Cumberland Shoe, and Snow & Sons decisions was that a union could obtain a bargaining order on the basis of signed authorization cards even if it had lost an election or, in the exceptional case, the employer had not committed independent unfair labor practices—in other words, exactly where the law stood in the early years of the Taft-Hartley Act when the good-faith doubt test was forged.⁹⁴ But in the years between Joy Silk’s inception and its restoration, the labor movement had become unified and refocused,⁹⁵ aware of the legal advantages it had lost during the Eisenhower administration and willing to press its rights before the NLRB. Unions increasingly organized around a recognition-request strategy, and Joy Silk-related litigation ate an increasing share of the Board’s docket throughout the 1960s: card-based bargaining orders increased from 35 in 1962 to 107 in 1967,⁹⁶ while the portion of Board-mandated bargaining relationships originating in unfair labor practice cases compared to secret-ballot elections more than tripled in this span.⁹⁷ It is against this backdrop that the ensuing criticism of the Joy Silk doctrine was framed.

D. Criticism and Modification of the Good-Faith Doubt Test

The Kennedy Board’s reinvigoration of the bargaining order remedy created a firestorm of controversy within labor law discourse. The Bernel Foam and Cumberland Shoe doctrines were especially savaged by management-side practitioners, who hurled accusations at the Board of pro-union bias and anti-election subterfuge.⁹⁸ Derek Bok, a respected professor from Harvard Law School, published an influential article on NLRB election law which questioned the use of bargaining orders in all but the most flagrant cases of employer lawlessness, opining that “[u]nions should not be permitted to seize upon trivial violations in order to obtain bargaining rights without an election.”⁹⁹ A management attorney by the name of Woodrow Sandler placed a widely-read opinion piece in the U.S. News & World Report which featured a laundry list of complaints with the Kennedy Board’s application of the Joy Silk doctrine and called for legislation to restrict management’s duty to bargain to unions that obtained certification through a secret-ballot election.¹⁰⁰ By the summer of 1965, the legislative campaign to repeal Taft-Hartley’s Section 14(b) “right to work” provision was being hijacked by the introduction of legislation intended to limit the Labor Board’s ability to issue Joy Silk bargaining orders.¹⁰¹

The NLRB, seemingly caught off guard by this backlash, made its first concession. In Hammond & Irving, decided mere months after introduction of that hostile legislation, the Labor Board refused to issue a bargaining order in a case where the employer unlawfully interrogated six employees out of the 110-person unit.¹⁰² The Board determined that the employer committed its unfair labor practice less than a month after it refused to bargain with the union’s card-based majority and in the final days before the scheduled election.¹⁰³ Even though these factors generally weighed heavily in the Joy Silk analysis,¹⁰⁴ the Board reasoned that “not every act of misconduct necessarily vitiates the respondent’s good faith” and “[t]his interrogation, while unlawful, was not so flagrant that it must necessarily have had the object of destroying the Union’s majority status.”¹⁰⁵ The good-faith doubt test, which had more or less operated as a per se rule for unfair labor practices in non-Eisenhower years, suddenly was seeing shades of gray.

The NLRB went even further a month later in deciding John P. Serpa, Inc.¹⁰⁶ Here, the employer did not respond to the union’s request for recognition; when prodded again by the union, the employer simply stated it had no intention of recognizing the union, drawing a refusal to bargain charge.¹⁰⁷ While the employer did not commit any independent unfair labor practices, its failure to affirmatively express any doubt about the union’s majority status or file for an election suggested that a bargaining order was due under Snow & Sons.¹⁰⁸ Instead, the Labor Board held that Section 8(a)(5) did not reach the described conduct because there was no evidence in the record “indicating that respondent has completely rejected the collective-bargaining principle” or sought “to gain time within which to undermine the union and dissipate its majority.”¹⁰⁹ More, it was now the Board attorneys’ burden to prove bad faith on the part of the employer; the mere fact that the union had presented its cards to the employer for inspection could not alone create the obligation to bargain or establish the employer’s bad faith.¹¹⁰

Despite the understated tone of the John P. Serpa decision, this act of burden-shifting represented a tectonic shift in Board law. It had been well understood since the Dahlstrom case that “adequate proof” of a card-based majority “could not in good faith be ignored[,]” and that an employer which rejected such presentations and “made no effort to learn the facts” of the union’s majority was guilty of an unlawful refusal to bargain.¹¹¹ Perhaps realizing that a more definitive pronouncement in this area was required, the NLRB moved to codify its new framework in the Aaron Bros. case:

While an employer’s right to a Board election is not absolute, it has long been established Board policy that an employer may refuse to bargain and insist upon such an election as proof of a union’s majority unless its refusal and insistence were not made with a good-faith doubt of the union’s majority. . . . Absent an affirmative showing of bad faith, an employer, presented with a majority card showing and a bargaining request, will not be held to have violated his bargaining obligation under the law simply because he refuses to rely upon cards, rather than an election, as the method for determining the union’s majority. . . . [I]t is the General Counsel who must come forward with evidence and affirmatively establish the existence of such bad faith.¹¹²

The Labor Board further raised the standard for violations which could garner a bargaining order; the General Counsel would now have to demonstrate that the employer engaged in either “substantial unfair labor practices calculated to dissipate union support” or in the rare Snow & Sons-type situation involving a bad-faith takeback.¹¹³

Although the NLRB professed loyalty to the Joy Silk doctrine in transferring the burden of proof from employers to the General Counsel, consider the nuts-and-bolts impact of this modification for Board prosecutors. Where a Board attorney could previously set forth the facts of the employer’s obstinate conduct and wait to rebut any assertions of good faith doubt, they were now required to present evidence of the employer’s lack of good faith up front. This essentially limited the cases in which the Board could make a prima facie case at trial for a Joy Silk bargaining order to Snow & Sons scenarios, Section 8(a)(3) discriminatory actions, and serious Section 8(a)(1) violations.¹¹⁴ Now an employer would no longer violate Section 8(a)(5) merely because it refused to rely on authorization cards, and it would not even need to advance any reasons for rejecting a union’s request for recognition. The subjective-motivation analysis intrinsic in Joy Silk thus threatened to collapse in on itself where the evidentiary burden was placed on the party having to prove the other’s state of mind. Board Member Howard Jenkins perceptively observed in his concurrence that the effect of the majority’s decision was to require an affirmative showing of bad faith rather than merely the absence of good faith.¹¹⁵

Despite this acquiescence, commentators continued to excoriate the good-faith doubt test as administered by the NLRB, coming in the form of law review articles,¹¹⁶ congressional testimony,¹¹⁷ and—for the first time since the Joy Silk doctrine gained widespread acceptance in the courts—a spate of judicial opinions, especially from the once sympathetic Second Circuit.¹¹⁸ Much of the venom directed at Joy Silk stemmed from its role in facilitating the use of the “dual-purpose” authorization cards sanctioned in Cumberland Shoe. The Fourth Circuit’s sudden broadside against the Labor Board’s treatment of card-based bargaining orders, commenced by Judge Clement Haynsworth’s opinion in the infamous Logan Packing case, served as the clarion call which would soon necessitate Supreme Court review:

It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a “card check,” unless it were an employer’s request for an open show of hands. The one is no more reliable than the other. No thoughtful person has attributed reliability to such card checks. . . . Though the card be an unequivocal authorization of representation, its unsupervised solicitation may be accompanied by all sorts of representations. “We need these cards to get an election. You believe in the democratic process, don’t you? Do you want to deny people the right to vote? Isn’t it our American way to resolve questions at the polls? Do you want to deprive us of that right? Are you a Hitler or something?” . . . The unreliability of the cards . . . . is inherent . . . in the absence of secrecy and in the natural inclination of most people to avoid stands which appear to be nonconformist and antagonistic to friends and fellow employees.¹¹⁹

However, significant criticism was levied against the substantive assumptions undergirding the NLRB’s view of good faith, independent of the issues assailing Cumberland Shoe. Judge Haynsworth argued in Logan Packing that an employer’s violations, even if “extreme conduct,” are merely “a neutral item of evidence” in an inquiry into its motivation, for “subsequent unfair labor practices have a tendency to prove only the employer’s opposition to the union’s organizational effort; they throw no light on his belief or disbelief of the union’s claim of majority status.”¹²⁰ He further interpreted the Taft-Hartley amendments to somehow prevent the issuance of a bargaining order under Section 8(a)(5) alone (as opposed to remedying “outrageous and pervasive” unfair labor practices under Section 8(a)(1) or (3)), despite Congress having altered neither Section 8(a)(5) nor the “designated or selected” language of Section 9(a) in 1947.¹²¹ Snow & Sons bargaining orders would thus not be enforced in the Fourth Circuit, and the barrier for independent unfair labor practices was raised above even the “substantial” intensifier in Aaron Bros.

There were courts that made Judge Haynsworth’s argument more persuasively and without succumbing to his invective.¹²² The eminent Judge Henry Friendly arguably did more than anyone to change the narrative surrounding the good-faith doubt test, sowing the fertile grounds for revision from which many scholarly attacks would seed. In NLRB v. River Togs, Judge Friendly lambasted the “cursory” treatment the Labor Board gave to good-faith doubt allegations and moved to sever the link between an employer’s misconduct and its concomitant duty to bargain:

[W]e see no logical basis for the view that substantial evidence of good faith doubt is negated solely by an employer’s desire to thwart unionization whether by proper or even by improper means. . . . [the employer’s] efforts to counter the Union . . . were “as consistent with a desire to prevent the acquisition of majority status as with a purpose to destroy an existing majority.”¹²³

Judge Friendly astutely observed that while the NLRB continued to speak in terms of good-faith doubt, the agency was actually conditioning bargaining orders on whether the employer’s unlawful conduct “made a fair election impossible.”¹²⁴ The Aaron Bros. decision demonstrated the Labor Board’s retreat from its role in championing an employer’s bargaining obligations, now simply guaranteeing “the most reliable means available to ascertain the true desires of employees with respect to the selection of a collective-bargaining representative”; like a sliding scale, an employer’s unfair labor practices cautioned the Board against operating its election machinery, but only if the employer’s practices were of sufficient severity.¹²⁵ Put another way, violations of the NLRA now shed light only on the pertinence of the government’s procedures rather than what duties an employer owed its employees at the time the violations were committed.¹²⁶ Good faith doubt emerges as little more than a fig leaf from Judge Friendly’s review.

This development of the law tracked the overwhelming consensus of the labor bar. Virtually every legal commentator who addressed the matter of card-based bargaining relationships in the 1960s urged the NLRB to abandon its good-faith doubt test and resist issuing bargaining orders except where an employer’s unfair labor practices were of the kind that preclude a fair election, including law professors,¹²⁷ law students,¹²⁸ NLRB personnel,¹²⁹ management-side attorneys,¹³⁰ and even a union-side attorney.¹³¹ The merits of that position will be considered in Part III of this Article, but it is sufficient to say that the sheer volume of opprobrium flowing from law school libraries, law firm offices, federal court chambers, and even the halls of Congress suggested that Joy Silk’s status as a doctrinal linchpin had reached its breaking point. But the good-faith doubt test would have a last chance at immortality when, in late 1968, the Supreme Court granted certiorari on four bargaining-order cases and consolidated them for oral argument, three being Fourth Circuit denials of enforcement that directly challenged the NLRB’s authority to issue bargaining orders based on authorization cards.¹³²

E. The NLRB Abandons the Good-Faith Doubt Test in Gissel

At first glance, the Supreme Court’s decision in Gissel appeared to be a tremendous victory for the NLRB.¹³³ In a unanimous opinion written by Chief Justice Earl Warren, the Court upheld the Labor Board’s use of authorization cards in bargaining orders under the Taft-Hartley amendments, rejecting any contrary readings of Sections 8(a)(5) and 9(a);¹³⁴ approved the Bernel Foam doctrine’s framework of post-election litigation for employer refusals to bargain;¹³⁵ and endorsed the Cumberland Shoe doctrine as a proper safeguard of union solicitation.¹³⁶ The academic and ideological attacks on authorization cards had failed; the Court’s proclamation that cards “can adequately reflect employee sentiment” did not even require an “extended discussion.”¹³⁷ The decision vindicated the Kennedy Board’s most controversial forays into union representation law and Section 10(c) remedies.

Amidst this administrative triumph, one might also have expected the Court to ratify the NLRB’s twenty-year-old criteria for evaluating the issuance of bargaining orders. Incredibly, despite all parties having briefed the Joy Silk doctrine and its Aaron Bros. modification as controlling law,¹³⁸ the Court noted early in its analysis that because the Labor Board “announced at oral argument that it had virtually abandoned the Joy Silk doctrine altogether[,]” “an employer’s good faith doubt is largely irrelevant.”¹³⁹ This was a stunning error by either the agency’s representative at oral argument or the Court in its interpretation of the briefs, for the NLRB certainly had not “abandoned” the good-faith doubt test by way of adjudication as of the day it argued Gissel on March 26, 1969. Indeed, the Board issued a bargaining order just 23 days prior on the basis of the employer lacking a good faith doubt as to the union’s majority status,¹⁴⁰ and it employed the test again on June 16, 1969, the very day that the Court decided Gissel.¹⁴¹ The presenter of the NLRB’s position, Associate General Counsel Dominick L. Manoli, had worked at the agency for 28 years and was considered a skilled oral advocate,¹⁴² arguing many major cases of mid-century labor law.¹⁴³ It is inconceivable that Manoli was confused or mistaken on this simple matter of black letter law, especially in preparation for a case of Gissel’s magnitude. What could explain his erroneous assertion to the Justices that the Labor Board no longer looked to an employer’s good faith doubt?

After extensively researching the NLRB’s files and interviewing living witnesses with knowledge of the Gissel case prep, Professors Laura J. Cooper and Dennis R. Nolan have presented compelling evidence that Manoli deliberately misled the Court as to the state of Board law.¹⁴⁴ In addition to being acutely aware of the labor bar’s desire for the agency to discard the good-faith doubt test in favor of an analysis relying strictly on the severity of employer misconduct,¹⁴⁵ NLRB personnel were concerned how best to answer the Court’s inevitable questions regarding an employer’s simple preference for an election:

Board attorney Thomas E. Silfen, who had written the first draft of the Board’s brief in Gissel, was present on a day shortly before the oral argument when Norton Come did a mock argument with Manoli. In the practice session, Manoli was presented with a hypothetical of an employer who hadn’t committed unfair labor practices and who also had no doubt about the validity of the authorization cards. The hypothetical employer told the union he wouldn’t recognize the union solely on the basis of authorization cards and wanted an election. The lawyer pretending to be a Supreme Court justice asked Manoli whether this employer would have committed an unfair labor practice [under Section 8(a)(5)]. Manoli replied that this wasn’t an unfair labor practice. The mock justice then reminded Manoli that in the hypothetical the employer had no good faith doubt. According to Silfen, Manoli “was left speechless, without a good answer.¹⁴⁶

This issue was a conceptual obstacle in the NLRB’s path to victory, but Joy Silk did not place it there. Under the pre-modified “pure” version of the Joy Silk doctrine, the hypothetical employer’s inability to proffer a good faith doubt as to the union’s majority status would have resulted in the finding of an unfair labor practice under Section 8(a)(5), consistent with the NLRB’s then-interpretation of what the duty to bargain required when confronted with a duly designated bargaining representative. The Labor Board’s choice in Aaron Bros. to emphasize the extent of unlawful subsequent conduct yet simultaneously retain the inquiry into an employer’s state of mind at the time it refused recognition created the exact dilemma that perplexed Manoli. That is, if an employer rejected a union’s request for recognition but openly accepted the validity of its card majority, and (1) these cards were not inherently unreliable demonstrations of employee choice (as the Board argued contra the Fourth Circuit), and (2) the issuance of a bargaining order still ostensibly hinged on whether the employer possessed a good faith doubt as to the union’s level of support at the time it made its request, then how does that employer escape a meritorious refusal to bargain charge if it insists upon proceeding to an election?¹⁴⁷

Manoli’s solution was to pretend this dilemma didn’t exist under Aaron Bros. and unilaterally substitute the labor bar’s preferred test for bargaining orders in place of NLRB case law. To the great confusion of the Justices and his fellow advocates in the courtroom, Manoli repeatedly claimed throughout his argument that an employer could automatically reject a union’s showing of cards and require the union to certify its majority through a secret-ballot election so long as the employer did not commit unfair labor practices that precluded a fair election.¹⁴⁸ Though skeptical, the Court accepted Manoli’s version of events and jettisoned any contemplation of good faith doubt in reviewing the various employers’ conduct; in its place, the Labor Board could now only “take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future.”¹⁴⁹ The Court proceeded to distinguish between employers’ unfair labor practices predicated upon their impact on the agency’s election processes and the range of the appropriate remedy:

Gissel I

In “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices, a “fair and reliable election cannot be had” and a bargaining order should issue;¹⁵⁰

Gissel II

In cases of “less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process[,]” the NLRB should consider “the extensiveness of an employer’s unfair practices in terms of past effect on election conditions and the likelihood of their recurrence in the future” before issuing a bargaining order;¹⁵¹ and

Gissel III

In cases of “minor or less extensive unfair labor practices,” a bargaining order should not issue “because of [the practices’] minimal impact on the election machinery[.]”¹⁵²

With good faith doubt deemed abandoned by the NLRB—regardless of whether its demise came by more proper means of adjudicative deliberation by the Board itself or the rogue machinations of one of its attorneys¹⁵³—the sliding scale of Aaron Bros. was elevated as the agency’s sole concern when appraising a bargaining order. In just five years, a rare coalition of labor law academics and practitioners had rebelled against the Kennedy Board’s enforcement of the Joy Silk doctrine and successfully lobbied for its replacement. Given the unanimity and efficacy of this crusade, it is surprising that these experts’ endeavors would almost immediately prove disastrous to the NLRA’s fragile ecosystem of enforcement.

F. The Last Gasp of Good Faith Doubt in Linden Lumber

It was not long before the matter of union recognition requests and employers’ duty to bargain was back before the Supreme Court. The Gissel decision, soon criticized for having posed as many questions as it answered,¹⁵⁴ purposefully refused to resolve the issue of when, if ever, an employer that had committed no independent unfair labor practices had a duty to recognize a union asserting its majority status.¹⁵⁵ Given Manoli’s desertion of the good-faith doubt test in Gissel, the NLRB was left to craft its own standard in addition to deciding whether to maintain the two exceptions Manoli gave to the rule that an employer can insist upon an election absent the commission of serious unfair labor practices: (1) that an employer could not refuse to bargain if it had independent knowledge that a majority of its employees supported the union, and (2) that an employer could not refuse recognition initially by objecting to the appropriateness of the unit and then later claim that it doubted the union’s majority status.¹⁵⁶ While neither exception explicitly relied upon the Joy Silk doctrine for its own vitality, each involved employer-motive examination that fit poorly with the agency’s transition from good faith doubt to employer misconduct as the trigger for a bargaining order.¹⁵⁷

There was more at stake than just the NLRB’s juggling of rationales in the fallout of a Supreme Court decision. Though Gissel did not offer much guidance to the Labor Board in how to address card-based recognition requests going forward, its expansive interpretation of the statutory language confirmed that the agency possessed the authority to compel an employer to recognize and bargain with a majority-supported union under virtually any circumstances. While most of the labor bar viewed the NLRB’s options as either promoting observance of its election machinery or tolerating a lesser form of union organizing, the Labor Board faced a more basic decision in terms of its administrative mission: whether to continue to enforce Section 8(a)(5) of the NLRA with respect to unions that had been “designated or selected” by a majority of employees as it did with respect to unions that had been certified by the agency or voluntarily recognized by the employer.

After initially opting to maintain the status quo,¹⁵⁸ the newly-constituted Nixon Board abruptly chose to stop enforcing the law. In Linden Lumber Division, Summer & Co., the NLRB addressed the issue of “whether, absent election interference, an employer who insists on an election must initiate the election by his own petition.”¹⁵⁹ A three-member majority determined that employer intransigence does not violate Section 8(a)(5), effectively placing the burden on unions to file an election petition once their request for recognition failed.¹⁶⁰ The Labor Board also took the opportunity to confirm Joy Silk’s demise, having never held so prior to Manoli’s maneuver:

The facts of the present case have caused us to reassess the wisdom of attempting to divine, in retrospect, the state of employer (a) knowledge and (b) intent at the time he refuses to accede to a union demand for recognition. Unless, as in Snow & Sons, the employer has agreed to let its “knowledge” of majority status be established through a means other than a Board election, how are we to evaluate whether it “knows” or whether it “doubts” majority status? And if we are to let our decisions turn on an employer’s “willingness” to have majority status determined by an election, how are we to judge “willingness” if the record is silent . . . or doubtful . . . as to just how “willing” the Respondent is in fact? We decline, in summary, to reenter the “good-faith” thicket of Joy Silk, which we announced to the Supreme Court in Gissel we had “virtually abandoned . . . altogether[.]”¹⁶¹

The Nixon Board further elaborated on its petition-filing stance in “Wilder II”, a reconsideration of an earlier proceeding in which the Board applied the independent knowledge doctrine post-Gissel.¹⁶² On remand, the majority appeared to concede that its position was entirely a matter of preference, but insisted “that the proper course in such cases is for the union, on behalf of the employees, to invoke our election processes.”¹⁶³ What is more, the decision to allow employers to refuse recognition under virtually any circumstances and face no obligation to engage the Labor Board’s services was justified as the pro-collective bargaining position. This incentivized unions to prove their majority through elections “in a matter of weeks” instead of by “litigation which would take us nearly a year to reach” or more.¹⁶⁴ The majority emphatically rejected the Joy Silk era, which was said to have “encourage[d] conflict, strikes, and contested litigation before this Board as a means of establishing a shaky foundation for future bargaining[.]”¹⁶⁵

The Linden Lumber and Wilder cases eventually made their way to the Supreme Court after being consolidated on appeal to the D.C. Circuit.¹⁶⁶ The D.C. Circuit reversed the Nixon Board’s postulation that “the decision to recognize a union on the basis of cards is entirely within the control of the employer[,]” finding that Sections 8(a)(5), 9(a), and 9(c)(1)(B) combined to “require an employer asserting a doubt of majority status to resolve the possibility through a petition for an election.”¹⁶⁷ Some form of good faith doubt thus was compelled by the statute. The NLRB could presumably abandon Joy Silk and any of its variants through administrative discretion,¹⁶⁸ but it could not forego any requirement at all that an employer demonstrate its “willingness to have majority status determined by an election.”¹⁶⁹ It was inconceivable to the D.C. Circuit that the NLRA could be read to grant the employer an absolute right to “avoid both any duty to bargain and any inquiry into the actuality of his doubt” when presented with a majority of signed authorization cards if it also had no duty to at least begin the process of resolving the representation question through the Board’s processes.¹⁷⁰ If nothing else, the Act required the employer to do something.

The Supreme Court disagreed. In a 5-4 decision authored by Justice William Douglas, the majority determined that the NLRB’s allotment of priorities within its election processes was neither arbitrary and capricious nor an abuse of discretion.¹⁷¹ Mining the NLRA for supporting authority, Justice Douglas could point only to the lack of any language in Section 9(c)(1)(B) that compelled employers to file a petition for an election.¹⁷² The rest of the opinion can at best be described as policy justifications for the Labor Board’s decision, primarily focusing on the length of time spent in elections versus bargaining order litigation and the allegedly negligible difference in delays stemming from a union-filed petition.¹⁷³ The Court offered a parting shot for the good-faith doubt test while sending it to its grave:

An employer concededly may have valid objections to recognizing a union on that basis. His objection to cards may, of course, mask his opposition to unions. On the other hand he may have rational, good-faith grounds for distrusting authorization cards in a given situation. He may be convinced that the fact that a majority of the employees strike and picket does not necessarily establish that they desire the particular union as their representative. Fear may indeed prevent some from crossing a picket line; or sympathy for strikers, not the desire to have the particular union in the saddle, may influence others. These factors make difficult an examination of the employer’s motive to ascertain whether it was in good faith. To enter that domain is to reject the approval by Gissel of the retreat which the Board took from its “good faith” inquiries.¹⁷⁴

It is interesting that this dicta from Justice Douglas made its way into the majority opinion in Linden Lumber whereas no such commentary was offered in Gissel, the case in which the Joy Silk doctrine actually influenced the lower proceedings.

Justice Potter Stewart provided a powerful rejoinder on behalf of the four dissenting Justices. He explained that the “absolute right” position staked out by the NLRB disregarded the clear language of Sections 8(a)(5) and 9(a), which “intended to impose upon an employer the duty to bargain with a union that has presented convincing evidence of majority support, even though the union has not petitioned for and won a Board-supervised election.”¹⁷⁵ While the agency was not confined to administering “a subjective test of the employer’s good faith in refusing to bargain with the union” as it did prior to Gissel, the Labor Board could not “adopt a rule that avoids subjective inquiries by eliminating entirely all inquiries into an employer’s obligation to bargain with a noncertified union selected by a majority of his employees.”¹⁷⁶ Section 9(c)(1)(B), originally intended as an act of self-protection for the employer which mirrored the union’s right to file a petition for an election, was now somehow interpreted by the majority as imposing an obligation upon unions to seek certification before obtaining the protections of Sections 8(a)(5) and 9(a).¹⁷⁷

It is worth contextualizing the degree to which the last five years had warped the law from its relatively settled state. Where once the notion that an employer need only bargain with a certified union was widely considered “frivolous,”¹⁷⁸ the root of this concept was now deemed a permissible reading of the NLRA, as Linden Lumber had validated the exact sort of employer obduracy that had inspired the NLRB and the courts to construct the good-faith doubt test in the first place. By looking only to an employer’s post-request conduct as cause for issuing a bargaining order, the labor bar had essentially amended Section 8(a)(5) to activate only in the pre-certification process, when an employer independently violated the other provisions of Section 8(a). Neither the statute’s language nor its legislative history supports such a view.

II. The Post-Joy Silk Landscape of Bargaining Orders

The NLRB’s about-face in Linden Lumber marked the beginning of a 50-year period in which the agency has refused to enforce Section 8(a)(5) of the NLRA in cases where the charging party is a union that has been “designated or selected” as the majority representative rather than certified. While many scholars have examined the decline of collective bargaining and the diminished deterrence of federal labor law enforcement,¹⁷⁹ few have tied these phenomena to the Labor Board’s ceding of jurisdiction over what was previously a rich environment for refusal to bargain charges. Upon closer examination, it becomes clear that the NLRB’s abandonment of the good-faith doubt test in favor of the misconduct-centric analysis enunciated in Gissel is intimately connected to the agency’s inability to enforce the law and, as a result, fulfill its statutory mission of encouraging collective bargaining.

A. The Enervation of Bargaining Orders Under the Gissel Framework

Despite the labor bar’s effusive lobbying for an objective standard in issuing bargaining orders and the broad approval granted to the remedy by the Supreme Court, the NLRB’s first wave of cases applying this standard were treated with great skepticism by the courts. Within two years of the Gissel decision, a majority of the circuits had rejected enforcement of such bargaining orders and criticized the Labor Board’s failure to heed the heavy evidentiary burden required to sustain the “extraordinary” remedy.¹⁸⁰ The Board was accused of simply reciting the unfair labor practice findings and announcing the need for a bargaining order à la Joy Silk,¹⁸¹ and courts pounced on the Board for neglecting a rapidly proliferating set of factors that judges read into Gissel’s mandate when determining whether a fair holding of an election—or, more commonly, a fair rerun of a tainted election—was truly impossible.¹⁸² Judge Friendly, the frequent foe of the Kennedy Board’s prosecution of the good-faith doubt test, set the tone early for the judiciary’s hostility to Gissel:

[W]e do not believe the Court thought that all the Board needed to do in deciding whether to dispense with the admittedly superior method of the election process to determine employee sentiment was, in Judge Goldberg’s apt phrase, to use “a litany, reciting conclusions by rote without factual explication[.]” . . . [T]here could be an opinion by the full Board illuminating how it meant to apply its Gissel-given authority—a course particularly important for an agency that is forced by the press of business so often to delegate its authority to three-member panels. Failing that, the Board should explain in each case just what it considers to have precluded a fair election and why, and in what respects the case differs from others where it has reached an opposite conclusion.¹⁸³

The opposing view was articulated most clearly by Judge Friendly’s colleague on the Second Circuit, Judge Paul Hays. Judge Hays had spoken of the need for judicial deference to the NLRB’s expertise during the Joy Silk era,¹⁸⁴ and he hit the same notes in his review of Gissel bargaining orders:

In warning the Courts of Appeals that it is for the Board not the courts to determine whether a bargaining order is justified, the Supreme Court could hardly have been more emphatic than it was in Gissel. Yet circuit judges continue to be so profoundly convinced of their own expertise in such matters that they do not hesitate to disregard the Supreme Court’s admonitions. Surely such matters as the effect on employees of threats to close the plant, to discharge for tardiness and to deprive them of plant privileges, are exactly the areas in which the Board rather than the judges have a special “fund of knowledge and expertise.”¹⁸⁵

But Judge Friendly’s vision carried the day, as judicial hostility to Gissel bargaining orders soon surpassed the acrimony which provoked the Supreme Court’s review of the good-faith doubt test.¹⁸⁶ The D.C. Circuit would arguably downplay the state of the law when, many years later, it acknowledged that courts have “long viewed [bargaining orders] with suspicion.”¹⁸⁷

Indeed, the NLRB’s difficulties in enforcing Gissel bargaining orders—and the agency’s eventual retreat from enforcing the remedy at any significant volume—are well documented. One study found that the average enforcement rate in the circuit courts was barely seventy percent.¹⁸⁸ Another observed that the Labor Board’s issuance of bargaining orders had drastically decreased over time; whereas 176 bargaining orders were issued by the agency between 1979 and 1982,¹⁸⁹ an average of just 9.7 such orders were issued annually from 1987 to 1996.¹⁹⁰ Common sense dictates that a remedy which is barely deployed and inconsistently enforced will have little deterrent effect, so it is little wonder that every quantitative analysis of Gissel bargaining orders concluded that they have failed in their stated goal of remedying unlawful employer conduct in the organizing context.¹⁹¹

Perhaps the greatest challenge facing the consistent enforcement of Gissel bargaining orders is the passage of time attendant with administrative delays. Circuit courts have routinely refused to enforce bargaining orders given “subsequent events bearing upon employee choice, including changes in the management as well as in the work force and the passage of time.”¹⁹² But this concept of “changed circumstances” is not another example of the judiciary’s overreach; the problem inheres in Gissel’s urging that the NLRB—when weighing the extensiveness of an employer’s unfair labor practices—may contemplate the “past effect on election conditions and the likelihood of their recurrence in the future.”¹⁹³ While the Labor Board initially ignored the circuit courts’ demands that it consider the passage of time in its calculations, the Board symbolically acquiesced in 1999, acknowledging the D.C. Circuit’s critical stance on the matter.¹⁹⁴ This appeared to be part of a broader agency-wide reckoning after 30 years of the remedy’s dwindling success.¹⁹⁵

A recent application of the changed circumstances phenomenon goes far in demonstrating the Gissel doctrine’s internal flaws. In Sysco Grand Rapids, LLC, the NLRB exercised its discretion to reject an administrative law judge’s (“ALJ”) recommendation for a Gissel bargaining order solely on the belief that the order would not be enforced on appeal due to an excessive passage of time.¹⁹⁶ The union in that case began organizing the employer’s workplace in late 2014 and had accrued a card majority by December 18 of that year.¹⁹⁷ The employer thereafter waged an aggressive antiunion campaign which included several “hallmark” violations of the NLRA, including “threats of loss of wages, benefits, and jobs; threat of plant closure; the pretextual discharge of a top union supporter in the workplace; and the solicitation of grievances with a responsive grant of benefits.”¹⁹⁸ The union requested recognition on March 6, 2015 and, upon rejection by the employer, filed a petition for an election on March 11.¹⁹⁹ The union lost the election on May 7 by a vote of 71 to 82 and proceeded to file a slew of unfair labor practice charges against the employer’s pre- and post-petition conduct.²⁰⁰ The ALJ found merit in virtually all of the charges and recommended that the election be set aside, the petition dismissed, and the employer be ordered to recognize and bargain with the union due the employer’s “severe and continuous” conduct unlawfully dissipating the union’s card-based majority and preventing the holding of a fair rerun election.²⁰¹

The ALJ’s decision was not published until March 2, 2017. Over 200 exhibits were introduced and over 2,000 pages of testimony were elicited at trial, for which hearings were conducted over the course of fourteen days spread across four-and-a-half months.²⁰² The employer had successfully moved to postpone the trial date twice and filed other customary pleadings, including motions for a bill of particulars and to revoke a subpoena.²⁰³ But the delays did not stop at the trial level. After the case was transferred to the Board for review, the employer filed three motions to re-open the hearing seeking to introduce evidence of alleged changed circumstances, all of which prompted objections, responses, and reply memoranda, in addition to the standard exception-based briefing to the ALJ’s decision. Somewhat comically, the employer even challenged a typographical correction issued by the ALJ regarding the charging party’s title, asserting that the erroneous local union number provided in the decision retroactively deprived the ALJ of jurisdiction over the case.²⁰⁴

The full Board in Washington, D.C. finally handed down its own decision on April 4, 2019, over four and a half years since the union began organizing the employer and almost four years after the election was held. The majority held that this passage of time, accompanied by a 30% turnover in the shop since the union obtained its majority, significantly decreased the likelihood of enforcing the Gissel bargaining order on appeal, even though the “severity of the Respondent’s unfair labor practices” would normally require the issuing of one.²⁰⁵ Not wanting to “engender further litigation and delay over the propriety of a bargaining order,” the majority rejected the ALJ’s recommended remedy and instead ordered a rerun of the May 2015 election.²⁰⁶

Still the matter persisted. The NLRB denied the employer’s motion for reconsideration on November 14, 2019 and briefing on the employer’s appeal of the unfair labor practices involved multiple extensions of time by both parties. The Sixth Circuit issued a decision upholding the meat of the Labor Board’s unfair labor practice findings on September 4, 2020.²⁰⁷ The ballots of the rerun election were tallied on January 22, 2021, followed by a nearly five-month-long process resolving various objections to the election. On June 14, 2021, nearly seven years after the original organizing campaign began, the results of the election were certified.²⁰⁸

Somewhere amidst this administrative nightmare, the majority’s decision in Sysco Grand Rapids drew a spirited dissent from then-Board Member (and current Chairman) Lauren McFerran, who championed the bargaining order’s place within the NLRA’s remedial weaponry.²⁰⁹ While not necessarily refuting the majority’s prognostication of the Gissel order’s sure death on appeal, McFerran instead made a stand against unilateral disarmament by the agency:

[E]ven at the risk of nonenforcement, we must stand for the [National Labor Relations] Act, not only because the Board is primarily responsible for effectuating the purposes and policies of the Act, but also because the Board must set national labor policy and cannot effectively do so by reverting to the least protective approach from a patchwork of views among the federal courts of appeals.²¹⁰

While cathartic, the reality remains that the Gissel framework is terminally vulnerable to legal stalling tactics and the sometimes-leisurely pace of federal bureaucracy.²¹¹ Because the test is predicated upon the NLRB’s ability to administer its election procedures for a hypothetically untainted electorate, the composition of the workforce rationally can be considered relevant to the remedy. This strongly incentivizes employers to delay the outcome of Labor Board litigation to achieve as much employee turnover as possible. One quickly sees why General Counsel Abruzzo appears to be targeting Sysco Grand Rapids for reversal expressly on the theory that employer delays contributed to the Board’s failure to issue a bargaining order.²¹²

Instead of exploring substantive alternatives to Gissel, the only creative energy expended by the agency in recent decades towards strengthening its bargaining order remedy has been the prioritization of injunctive relief under Section 10(j).²¹³ True, litigating the union’s unlawful loss of its majority as soon as the field investigation is concluded does much to address the lag involved in most NLRB litigation, and some courts have accepted this proactive remedy.²¹⁴ But there is no indication that the Labor Board seeks and obtains 10(j)-variety Gissel orders at any meaningful volume,²¹⁵ and as the next subpart of this Article will demonstrate, it is clear that this initiative has not noticeably deterred the historical trends of employer misconduct. Moreover, Section 10(j) relief can have the novel consequence of later harming the Board’s ability to enforce a bargaining order where the court believes an injunction already dispelled the sort of misconduct that Gissel is premised upon remedying.²¹⁶ It is thus doubtful that the agency can bootstrap Gissel into a state of potency merely by shuffling the order in which courts are presented with its precepts. The problem remains the precepts themselves.²¹⁷

The story of Gissel inverts the history of Joy Silk. Whereas Joy Silk was developed through years of dialogue between the NLRB and the courts before being universally accepted as national labor policy, only to later fall victim to backlash from more robust enforcement, Gissel was foisted upon labor law overnight and immediately resisted by the federal judiciary to the point where its relevance has linearly waned. Gissel has nevertheless survived its criticism, lumbering on in obscurity.

B. The Explosion of Employer Misconduct Following the Retreat from Joy Silk

While outwardly serving as remedies in individual cases, both the Joy Silk and Gissel breeds of bargaining orders function more broadly as deterrents against what the NLRB perceives as widescale employer wrongdoing; the former by condemning bad-faith rejections of “the collective bargaining principle” mandated by Section 8(a)(5) and the latter as a tripwire once misconduct has reached a certain level.²¹⁸ The doctrines’ worth as backstops of federal labor law enforcement must therefore be measured by their ability to prevent the type of activity for which they were originally conceived. Here, a clear winner emerges.

Until recently, no one had compared the competing effects on labor policy of the Joy Silk and Gissel eras of bargaining orders, even those who have written negatively of Gissel’s preventative and restorative effects.²¹⁹ Brian Petruska filled this void in a prescient and powerful article which examined the twin occurrences of (1) the explosion in employer unfair labor practices during the 1970s and (2) the simultaneous drop in NLRB-conducted elections, and argued that the disappearance of Joy Silk from Board case law explains much of these phenomena.²²⁰ While it is concededly counterintuitive that a little known doctrine which is almost completely excluded from modern labor law curriculum could be responsible for the fall of the mid-century legal regime, Petruska deftly presents and navigates the data while dispatching with competing theories.

According to Petruska, after Joy Silk was deemed abandoned by the Supreme Court in Gissel, the number of unfair labor practice charges alleging unlawful employer intimidation under Section 8(a)(1) or unlawful employee discharges under Section 8(a)(3) saw a “nearly instantaneous” spike.²²¹ Unlawful discharge allegations increased 125% from 1969 to 1981 after rising only slightly from 1959 to 1969; unlawful intimidation charges increased 525% from 1969 to 1981 despite having remained static the decade prior.²²² Meanwhile, elections had risen steadily during the 1960s but began to flatline in the 70s, eventually cratering in a direction that has never been reversed.²²³ While discharge and intimidation charges also fell in terms of raw numbers after 1980, the drop in elections did not lead to a decrease in the rate at which employers were accused of misconduct in the few elections that were actually held.²²⁴ In fact, the number of discharge and intimidation charges filed per election continued to rise through the twenty-first century.²²⁵ For example, where just one discharge allegation was filed for every election held from 1959 to 1969, an average of 3.2 such charges per election were filed from 1981 to 2009.²²⁶

Suffice it to say, something happened in (or around) 1969 to dramatically affect employers’ willingness to unlawfully interfere in elections.²²⁷ Petruska points to the Joy Silk–Gissel exchange as the culprit.²²⁸ Under the Joy Silk doctrine, employers did not have an incentive to commit unfair labor practices in the run-up to an election, as most Section 8(a)(1) or (3) violations could prevent an employer from arguing it had a good-faith doubt of the union’s majority status and result in Board-ordered bargaining. Gissel substantially raised a union’s burden for proving the need for a bargaining order by making only “outrageous” and “pervasive” unfair labor practices worthy of bypassing the NLRB’s election machinery, meaning that many—if not most—violations could escape scrutiny under this test. The internal analysis for an employer thus changed to how much misconduct it could get away with, balanced against the electoral benefits it received from intimidating its workforce. Given Gissel’s stated preference for elections, many employers were emboldened to explore the doctrine’s boundaries.

While Petruska’s argument runs counter to the prevailing theory of labor history that management opposition to unionism spread and intensified as a culture in the 1970s and was dramatically punctuated by President Ronald Reagan’s firing of the Professional Air Traffic Controllers Organization strikers in 1981,²²⁹ the latter explanation is lacking. Individual employers have overwhelmingly opposed unionization throughout American history and chosen to litigate and lobby in favor of the nonunion default, contrary to claims which suggest that mid-century management ideology generally accepted labor unions as a fact of industrial life.²³⁰ The prominence of the Joy Silk doctrine in mid-century labor law reflects the routine fashion in which employers refused union requests for recognition, and the immense controversy surrounding the Kennedy Board’s application of the good-faith doubt test in the 1960s demonstrates that the unanimity of management opposition to unionism almost certainly predated the point at which unfair labor practice charges exploded in number. Instead of the result of a spontaneous cultural consensus, the trend of the 1970s “is better explained by a management culture already hostile to unions, with a sudden change in the legal regime that reduced deterrence.”²³¹

By the late 1970s, the NLRB was processing three times more unfair labor practice charges than election petitions.²³² This ratio only expanded in the 1980s and 90s as petitions sharply dropped in number.²³³ The Labor Board’s primary duty thus increasingly became remedying unfair labor practices rather than resolving questions of representation, a striking subversion of Congress’s original vision of the agency as one encouraging the practice and procedure of collective bargaining.²³⁴ The inevitable inference is that employer misconduct had made secret-ballot elections an increasingly difficult and time-consuming endeavor for unions, leading them to abandon the certification process en masse in pursuit of more fruitful means of organizing.²³⁵ In one of the great ironies of American labor law, the near-apocalyptic pronouncements of Joy Silk’s coming evisceration of elections instead were realized under the prophets’ preferred test in Gissel.²³⁶

Before concluding this Article’s historical discussion, it is worth revisiting the pivotal Logan Packing’s final words. As part of a general diatribe against the NLRB’s approach to remedying misconduct in the pre-recognition context, Judge Haynsworth laid forth his narrow vision for what place bargaining orders should occupy in the industrial order:

In those exceptional cases where the employer’s unfair labor practices are so outrageous and pervasive and of such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had, the Board may have the power to impose a bargaining order as an appropriate remedy for those unfair practices. . . . The remedy is an extraordinary one, however, and, in light of the guaranty of § 7 of employees’ rights not to be represented, its use, if ever appropriate, must be reserved for extraordinary cases.²³⁷

This passage represents, for all intents and purposes, the test mostly adopted in Gissel and carried forth by the circuit courts in the decades after.²³⁸ While Gissel was originally interpreted as a victory for unions over the recalcitrant views of the Fourth Circuit, the most important component of the case was convincingly decided in the employers’ favor. That so few scholars have traced this thread back to the Joy Silk era of bargaining orders—even when critiquing the Gissel structure—thus requires a fulsome defense of the logic underlying the remedy’s glory days.

III. Restoring The Good-Faith Doubt Test as the Lodestar of Bargaining Orders

A. The Elite Consensus Against Considering Subjective Motivation for
Refusals to Recognize

As discussed earlier, by the late 1960s the good-faith doubt test was under fire by an impressive armada of labor law experts in academia, government, and private practice.²³⁹ The NLRB has historically been susceptible to pressure from public and private sources,²⁴⁰ and the Kennedy Board—more controversial than any variation of the Board since its original Wagner Act composition²⁴¹—proved to be no exception when it emaciated the Joy Silk doctrine into its Aaron Bros. skeleton.²⁴² This modification did nothing to assuage the many opponents of Joy Silk, as they continued to call for the Labor Board to abandon the good-faith doubt test through the pivotal year of 1969.²⁴³

The Supreme Court in Gissel undercut critics’ most forceful argument when it approved the NLRB’s use of authorization cards in the context of union recognition. The Fourth Circuit had denounced cards as an inherently unreliable expression of employee choice²⁴⁴ and some commentators opined that cards should never be used by the Labor Board to establish majority status.²⁴⁵ Alternatively, the Cumberland Shoe doctrine came under attack for its deregulatory approach to the agency’s monitoring of card solicitation.²⁴⁶ While Gissel clearly subordinated card-based majorities below those established by elections, the Court’s attachment of at least some prestige to cards eliminated the most direct attacks against the Board’s use of bargaining orders.

But substantive objections to Joy Silk remained. Opponents raised three major complaints about the doctrine, all concerning the NLRB’s conception and application of good faith doubt. In the first and most basic complaint, commentators questioned the Labor Board’s search into employer motive in analyzing potential Section 8(a)(5) violations where a Section 9(a) relationship had not previously existed (the “Statutory Objection”).²⁴⁷ Neither Sections 8(a)(5) or 8(b)(3)²⁴⁸ make any mention of good or bad faith, and Section 8(d) appears to speak of the duty to bargain only in terms of when a representative has already been ascertained.²⁴⁹ While the Supreme Court in Arkansas Oak Flooring deigned the pivotal inquiry in the recognition context to be whether there was an “absence of any bona fide dispute as to the existence of the required majority[,]”²⁵⁰ some suggested that this did not beg the question of the employer’s state of mind; rather, a bona fide dispute could be read to exist only in the presence of more objective, “convincing support” than the mere proffering of authorization cards, such as “by a strike or by a vote to strike.”²⁵¹ The agency’s blending of pre-recognition events with post-recognition duties was thus an “artificial” departure from the obligations imposed by the NLRA.²⁵²

Second, critics interrogated the logic of the NLRB’s assumptions in applying the good-faith doubt test (the “Logical Objection”). It was frequently averred that an employer’s commission of an unfair labor practice sometime following its rejection of a union’s request for recognition could not retroactively prove that the employer lacked a good faith doubt of the union’s assertion of majority status.²⁵³ Critics argued that an employer could in good faith believe that the union did not constitute a majority of the workforce at the time of its request, and later violate the law to prevent the coalescing of such support.²⁵⁴ Further, an employer could simply doubt the legitimacy of a card-based majority until it was established through an election based upon the company’s past organizing experiences.²⁵⁵ The Labor Board’s subjective practice of “retrospective divination” required more specific evidence than “the recitation of ancient and unreasoned precedent.”²⁵⁶ This was the dreaded “thicket,” denounced in Linden Lumber, that Gissel would supposedly lead the Board out of.

Finally, opponents charged the good-faith doubt test with perverting the policies of the Taft-Hartley Act (the “Policy Objection”). Even if card-based bargaining orders had survived the 1947 amendments, Congress’s inclusion of Section 8(c)²⁵⁷ evinced a clear sponsorship of employers’ right to campaign against unionization.²⁵⁸ Joy Silk not only threatened to deprive employers of the ability to lawfully persuade their employees but also punished employers for being truthful and not masking their motives.²⁵⁹ Professor Howard Lesnick articulated this sentiment in a celebrated passage:

I must confess to a total inability to understand in what sense relevant here an employer is obliged to accept the collective bargaining principle. Of course he is enjoined to bargain in good faith (when he is obliged to bargain at all), and he must refrain from discrimination or coercion affecting employee attitudes toward collective bargaining. But what has that got to do with his state of mind or motivation when it comes to his response to an initial demand for recognition? It certainly cannot be unlawful for him to want to defeat the union at the polls and thereby obtain a lawful ground for rejecting collective bargaining. If an employer is to be permitted, first, to insist on an election, and then to campaign against the union in that election, it is perfectly clear that he is being permitted to reject the collective bargaining principle so long as his employees do not, by voting for the union, oblige him to accept it. It simply encourages hypocrisy to permit an employer to acknowledge his doubts, but not his hopes.²⁶⁰

The Labor Board’s requirement under the “pure” Joy Silk test that the employer not only possess a good faith doubt of the union’s majority but that it espouse such doubt at the time it rejected the union’s recognition request and make some effort to ascertain the veracity of the union’s claim led one judge to dramatically describe the employer’s position as resembling that of Odysseus “as he makes the perilous passage between Scylla and Charybdis.”²⁶¹ The employer’s dilemma was supposedly great: it could (1) insufficiently state its doubt, breaching Joy Silk if the union in fact had a majority; (2) wade too far into the waters of workplace polling by unlawfully interrogating its employees, in contravention of Struksnes Construction Co., Inc.;²⁶² (3) if successful in verifying the union’s majority support, either by lawfully polling the employees or some other means of “independent knowledge,” ensnare itself in a Snow & Sons situation by not immediately recognizing the union; or, most speculatively, (4) unwittingly violate Section 8(a)(2) by recognizing a union that did not in fact possess majority support.²⁶³ The result was to elevate “form over substance,”²⁶⁴ privileging employers with sophisticated legal counsel over those who failed to speak the “magic words” required by the Labor Board.²⁶⁵

These assertions were never adequately rebutted. Only three defenses of the good-faith doubt test of any prominence were published prior to the Gissel decision: a short memorandum sent from Secretary of Labor W. Willard Wirtz to the Senate labor subcommittee in 1965;²⁶⁶ a speech delivered by an Associate General Counsel of the NLRB to members of the labor bar in 1968;²⁶⁷ and a memorandum sent from Chairman Frank McCulloch to the Senate judiciary committee in that same year.²⁶⁸ None of the government officials addressed the substantive objections to Joy Silk highlighted above, instead concerning themselves with the alleged excesses of the doctrine by comparing the small number of card-based bargaining orders to the agency’s voluminous election docket.²⁶⁹ With Joy Silk back on the labor-management community’s radar for the first time in decades,²⁷⁰ it is well past time that the doctrine be vindicated.

B. The Good-Faith Doubt Test as the Superior Vehicle of Labor Law Enforcement

This final portion of the Article will address the primary objections to the NLRB’s use of the good-faith doubt test in the realm of union requests for recognition identified in the previous subsection, and elucidate their lack of historical, legal, and practical foundations.

1. The Statutory Objection

Arguments that attempt to distinguish the law of recognition from the law of bargaining in terms of when an employer’s motive should matter ignore the legislative history of the NLRA and the Act’s early developments by the NLRB. Senator Robert Wagner—who almost singlehandedly shepherded the NLRA through the upper chamber²⁷¹ after delegating the drafting of the Act to his top assistant²⁷²—made clear that a duty of recognition meant nothing without a corresponding duty to bargain, and vice versa.²⁷³ This sentiment, fleshed out in the seminal Houde case from the “old” National Labor Relations Board,²⁷⁴ was clearly expressed in the Senate committee report regarding the inclusion of Section 8(5):

But after deliberation, the committee has concluded that this fifth unfair labor practice should be inserted in the bill. It seems clear that a guarantee of the right of employees to bargain collectively through representatives of their own choosing is a mere delusion if it is not accompanied by the correlative duty on the part of the other party to recognize such representatives as they have been designated . . . and to negotiate with them in a bona fide effort to arrive at a collective bargaining agreement.²⁷⁵

Importantly, Wagner considered an employer’s attempt to deal with its employees “otherwise than through representatives they have named” for the purposes of collective negotiations “would be the clearest interference with the right to bargain collectively.”²⁷⁶

Of course, two concepts can be symbiotic without being equivalent, but the Statutory Objection is further undermined by the simultaneous development of the good faith standard in both realms of Section 8(5). When the NLRB and the courts were crafting the concept of employer intent in the recognition arena,²⁷⁷ they were simultaneously clarifying that fulfillment of the duty to bargain was dependent on the employer’s good or bad faith posture at the negotiating table.²⁷⁸ Some of the Labor Board’s earliest cases instructed that an employer must possess a “bona fide intent” to reach a collective bargaining agreement with its employees,²⁷⁹ or else the duty would produce only a “barren right of discussion”;²⁸⁰ stalling tactics served as a “substitute for non-recognition of the employees’ representatives[.]”²⁸¹ An employer was further obligated to “accept the procedure of collective bargaining in good faith . . . in light of the prevailing practice . . . and the spirit and purpose of the Act[.]”²⁸² Tellingly, an employer’s lack of good faith could be inferred from its subsequent conduct, including discharges, delays, and inconsistent negotiation positions.²⁸³ These pronouncements should sound familiar to the language utilized in Joy Silk, which considered an employer’s refusal of a union’s lawful request for recognition to lack good faith if the employer was motivated “by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union.”²⁸⁴ The Supreme Court approved the good faith standard for post-recognition violations of the duty to bargain in 1941,²⁸⁵ and Congress moved to codify the Board’s case law in this area by way of Section 8(d).²⁸⁶

Employing a motive-based analysis in both the pre- and post-recognition contexts is not an “artificial” amalgamation of disparate doctrines. Rather, splitting the two despite their identical statutory origins, oft-intertwined factual scenarios, and overlapping interpretative timelines would be nothing less than arbitrary. The Statutory Objection declines to investigate why every relevant tribune of federal labor law adopted an implied inquiry into motive for employer refusals to bargain almost immediately after passage of the Wagner Act, or why a slew of unanimous Supreme Court opinions in the early 1940s upheld the NLRB’s use of bargaining orders to remedy such violations. Indeed, the only artificial departure from case law here appears to be the employer’s election privilege announced in Linden Lumber, which ignored virtually the entirety of Section 8(a)(5) case law from the preceding decades to arrive at a preferred policy outcome regarding the Labor Board’s administration of its unfair labor practice and election mechanisms.²⁸⁷ The Board’s abrupt cessation of jurisdiction over pre-recognition refusal to bargain charges becomes almost impossible to defend upon realizing that for 35 years, the Board, the courts, and necessary majorities of Congress all declined to extinguish this power.²⁸⁸

It is true that state-sponsored searches into persons’ thoughts and rationales can pose difficulties for administrative agencies that must enforce their laws through litigation because of the requisite due-process rights afforded to prosecuted parties. But the NLRA, when boiled down to its essentials, was in effect a regulation passed in condemnation of the prevailing employer mindset—that of reflexive and spirited resistance to unionization.²⁸⁹ The NLRB was constructed to remedy “bona fide dispute[s]” of employee representation,²⁹⁰ and it is entirely permissible (if not necessary) for the Labor Board to filter the meanings of “bona fide” and “dispute” through the lens of scienter. In this telling of history, “good faith” is not a straitjacket for the Board that was shed after Gissel; instead, it breathed life into the duty to bargain and gave voice to the law’s moral component.²⁹¹

2. The Logical Objection

The clearest consequence of the Supreme Court’s decision in Gissel was that the NLRB could continue ordering employers to bargain with unions based on a majority of signed authorization cards. While the Court deemed elections to be the “preferred” method of ascertaining majority support,²⁹² it ultimately delegated to the Labor Board the ultimate determination of what value to ascribe to cards.²⁹³ So long as the Board does not prioritize cards in a way that subsumes elections,²⁹⁴ the Board is within its power to consider employees’ signatures as a generally valid designation of a majority representative.²⁹⁵

This is not some empty truism. Whereas the labor bar frequently claimed pre-Gissel that an employer that committed an unfair labor practice after rejecting a union’s request for recognition may have in good faith believed the union did not yet possess a majority, an employer that was presented with evidence of a valid card count can no longer claim to have doubted the desires of his workforce at the time the request was made. The employer may reasonably believe that a sufficient number of these designations were made hastily or lazily and thus are capable of persuading against unionization, but any unfair labor practices committed in place of lawful campaign tactics can fairly be inferred as bad-faith efforts by the employer to unlawfully dissipate the union’s majority status after being placed on notice.

Even if one denies any causal link between employer misconduct and a lack of good faith doubt, subjective motivation is regularly dispositive of cases under the NLRA even in the absence of specific evidence proving a party’s unlawful intent. As mentioned, intent is paramount in post-recognition refusals to bargain under Section 8(a)(5).²⁹⁶ Motive of a “reliable manifestation” must normally be established by circumstantial evidence²⁹⁷ gleaned from the totality of the circumstances “both at and away from the bargaining table.”²⁹⁸ The employer’s bad faith would otherwise be virtually impossible to prove without a smoking-gun statement indicating its deception.²⁹⁹

Labor law’s willingness to forego direct evidence in unfair labor practice analysis is even more accentuated in Section 8(a)(3) cases.³⁰⁰ In Radio Officers’ Union v. NLRB, the Supreme Court held that motive of unlawful discrimination could be inferred by the Labor Board from the mere effect of the employer’s actions.³⁰¹ In Justice Stanley Reed’s words, “specific evidence of intent to encourage or discourage is not an indispensable element of proof of violation” of Section 8(a)(3).³⁰² Channeling “the common law rule that a man is held to intend the foreseeable consequences of his conduct[,]” Justice Reed reasoned that “employer conduct inherently encourages or discourages union membership” if “a natural consequence of his action was such encouragement or discouragement.”³⁰³ Thus, if the Board has concluded “that encouragement or discouragement will result, it is presumed that he intended such consequence.”³⁰⁴ Crucially, the agency could draw upon the “common experiences” of industrial relations to infer unlawful motivation, even where no “independent proof” of it existed in the record.³⁰⁵

The Court would prominently apply Radio Officers in a pair of landmark cases in the 1960s. In NLRB v. Erie Resistor Corp., the Court found that a “superseniority” plan offered to strike replacements and crossovers was unlawful because it was “inherently destructive” of the right to strike and that no specific evidence of the employer’s motivation was necessary to sustain the Labor Board’s finding of a Section 8(a)(3) violation.³⁰⁶ The employer had grounded its decision to implement the plan upon a discriminatory albeit facially lawful purpose—i.e., the need to attract workers to keep the plant running during the strike—and claimed that the Board must demonstrate “specific illegal intent” to override the employer’s business justification.³⁰⁷ The Court rejected that the proffering of a legitimate business reason was an automatic defense to a Section 8(a)(3) charge where direct evidence was absent; the destruction of Section 7 rights remain a “foreseeable consequence” of the challenged conduct, so the agency must weigh the employees’ interests against the interest of the employer in determining the conduct’s legality.³⁰⁸ The Great Dane Trailers case attempted to distill Erie Resistor’s reasoning into a workable test.³⁰⁹ Where discriminatory conduct is “‘inherently destructive’ of important employee rights[,]” no proof of anti-union motive is necessary and the conduct violates Section 8(a)(3) even if the employer introduces affirmative evidence of business justifications.³¹⁰ But in cases where “the adverse effect of the discriminatory conduct on employee rights is ‘comparatively slight’” and “the employer has come forward with evidence of legitimate and substantial business justifications for the conduct[,]” the NLRB must produce direct evidence of discriminatory motive.³¹¹

Given the rather amorphous concepts of “inherently destructive” conduct versus that which is only “comparatively slight,” the Great Dane Trailers doctrine’s workability was almost immediately called into question.³¹² But the arguably more impactful aspect of the case—its treatment of the burden of proof—has endured. In either an inherently destructive or comparatively slight context, the General Counsel’s presentation of a circumstantial case in which an employer’s discriminatory conduct could have affected employees’ Section 7 rights shifts the burden to the employer “to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.”³¹³ The employer also bears the burden in more commonly litigated individual discrimination cases. Under the Labor Board’s Wright Line “causation” test, the General Counsel bears the initial burden of putting forth evidence sufficient to support an inference that an employee’s protected conduct was a motivating factor in an employer’s decision to discipline.³¹⁴ Once this prima facie case has been made, the employer bears the burden of demonstrating “that the same action would have taken place even in the absence of the protected conduct.”³¹⁵ The Supreme Court approved of the Board’s causation test in 1983 as a permissible interpretation of the NLRA, rejecting the lower court’s reasoning that Section 10(c) forbade the agency from allocating the burden of persuasion to the accused party.³¹⁶

What connection does this Section 8(a)(3) case law have to the merits of the good-faith doubt test in pre-recognition refusals to bargain? Compare what is required of the NLRB in prosecuting a case under a Great Dane Trailers theory and what is required of it under Joy Silk. Under Great Dane Trailers, the General Counsel must only point to the employer’s conduct and argue it is inherently destructive of employee rights. This is a high threshold, but it is one that can be met in the briefs. At trial, the General Counsel need not present any direct evidence that the employer intended to retaliate against protected activity or that the conduct actually discouraged union membership. The mere occurrence of the conduct means that a discriminatory inference can be drawn as to the employer’s motive. Under Joy Silk, the General Counsel must only point to the employer’s conduct and argue that it either dissipated the union’s majority status or rejected the principles of collective bargaining. Direct evidence establishing the employer’s intent to accomplish these results is not necessary, as the inference fairly follows from the employer’s willingness to commit an unfair labor practice after learning of the union’s majority through its request for recognition.³¹⁷ In both cases, circumstantial evidence alone requires the employer to affirmatively prove its clear conscience—in Great Dane Trailers, by proffering legitimate business reasons for its discriminatory conduct, and in Joy Silk, by demonstrating its good faith doubt that the union possessed majority support.

To be sure, some commentators have criticized the NLRB’s preoccupation with parties’ motive in adjudicating cases, especially where it relies on inferences of a mindset that is not otherwise in the record.³¹⁸ But it is apparent from this quick canvas of hornbook law that independent evidence of an employer’s subjective motivation is not a precondition to sustaining an unfair labor practice, and the good-faith doubt test fits squarely within this paradigm.³¹⁹ Furthermore, a non-circumstantial test will not involve less conjecture. As Petruska has persuasively argued, a fatal flaw of Gissel is that it requires judges to speculate about future events—specifically, the NLRB’s ability to administer a fair election if only traditional remedies are applied.³²⁰ With changed circumstances often present by the time a case has reached the courts³²¹ and the omnipresent temptation under Gissel to defer to the “preferred” system of elections, there is no reason why its forward-looking test would create more determinacy for bargaining orders than the backward-looking test of Joy Silk, which at least resembles the standard format for remedial analysis under Section 8(a)(5). If Joy Silk is a logical thicket, then Gissel is a veritable briar patch, a territory that wrongdoers have learned to nimbly navigate.

3. The Policy Objection

Finally, there is no basis for the complaint that the good-faith doubt test placed employers in an impossible quandary. The grand metaphor of Scylla and Charybdis must not be conceded, for the law of recognition under the “pure” Joy Silk doctrine did not resemble the trials and tribulations found in The Odyssey; in reality, it was a largely intuitive process. In his much-discussed memorandum to the Senate labor subcommittee written in defense of the Kennedy Board, Secretary Wirtz described the employer’s journey with decidedly less flourish than Homer:

[U]nder the Board’s practices and policies, an employer who questions whether cards reflect the true choice of his employees does not have to abide by those cards. Nor does he have to seek out evidence that the cards do not reflect the employees’ true choice. All he has to do is file a petition for an election, if the union does not, refrain from unfair labor practices, and then wait for the Board to determine the representation issue through a secret-ballot election. Of course, during the preelection period, the law allows an employer to express to employees his views, arguments, or opinions on the subject of unionization, if he makes no threat of reprisal or force or promise of benefit and does not otherwise improperly interfere with the free choice of his employees. “Where an employer departs from these standards or demonstrably has no doubt of the union’s majority, the Board’s reliance upon card-established majorities seems clearly warranted and is approved in the courts.”³²²

The accuracy of Secretary Wirtz’s synopsis can be demonstrated through a counterfactual. If an employer’s duty to recognize a union was a legal quagmire in the 1960s and capable of significant exploitation by unions, we would expect to see litigation on this issue at a volume that threatened to subsume the NLRB’s election processes. After all, why would a union that can so easily trap an employer into a card check through manipulation of favorable case law ever willingly risk its majority in an election? But statistics from this era show that Joy Silk saw very little use compared to the Labor Board’s election machinery. While card-based bargaining orders increased in magnitude under the Kennedy Board,³²³ the 107 such cases in fiscal year 1967 consumed barely one percent of the total number of situations in which the Board confronted a question of representation, as 8,193 secret-ballot elections were conducted in that year alone.³²⁴ Moreover, Secretary Wirtz unearthed only ten total cases since the creation of the Joy Silk doctrine in which the agency ordered bargaining solely based on an employer’s lack of good faith doubt in the union’s majority status without the presence of independent unfair labor practices—in other words, the Snow & Sons line of cases.³²⁵ The Secretary was thus on solid ground when he confidently declared that “[e]lections are the rule. Card checks are rare exceptions.”³²⁶

It defies belief that roughly 99% of employers presented with a request for recognition in this time frame already possessed able counsel or received sound advice from attorneys regarding their legal options, so one must conclude that either unions were consciously foregoing an ostensibly guaranteed route to exclusive representation and bargaining rights, or these seas were much more navigable for employers than suggested.³²⁷ Here, Joy Silk’s sparse utilization versus the NLRB’s election machinery belies a massive influence on the latter’s components. The reduced rates at which employers drew unfair labor practice charges when the good-faith doubt test was controlling law provided fewer opportunities for the Board to consider a bargaining order.³²⁸ Given the proliferation of unfair labor practice charges that followed immediately after the NLRB relinquished the good-faith doubt test, it appears there was a widespread understanding among employers in the 1950s and ‘60s that violating the NLRA in the election context could have grave (and expensive³²⁹) consequences.

Therein lies the most compelling policy reason for resurrecting the Joy Silk doctrine and the best response to Professor Lesnick’s befuddlement regarding the Labor Board’s monitoring of employers’ good faith.³³⁰ Under its General Shoe doctrine, the Board requires that elections be conducted under a standard of “laboratory conditions” that “enable[s] employees to register a free and untrammeled choice for or against a bargaining representative.”³³¹ The Gissel test, which intrinsically restricts the volume of bargaining orders through classification as an “extraordinary” remedy, places an inexorable strain on General Shoe by “routinizing a baseline level of [unfair labor practices] that will be deemed ordinary, or at least not extraordinary, in the administration of the Act.”³³² Joy Silk’s restriction of election misconduct resulted in a more proper calibration of laboratory conditions and was, therefore, the more faithful application of the NLRA.³³³ The utter collapse of the bargaining order remedy despite the persistence of the Bernel Foam and Cumberland Shoe doctrines post-Gissel further illustrates that good faith doubt is the missing pillar of the Board’s structure, and the foundation upon which any restoration effort must be built.³³⁴

The NLRB’s inquiry into motive in the pre-recognition context was statutorily permissible, logically consistent, and effectively deterrent. With this history in mind, the question becomes why would the Board not return to an analysis of good faith doubt as refuge from the current failed regime? Perhaps Lesnick put it best when he pondered—in rhetorical fashion—why the Board would voluntarily abandon its “winning formula.”³³⁵

Conclusion

In lieu of excessive drumbeating, this Article will conclude with two brief comments on ancillary issues. First, it is indisputable that the NLRB may discard the case law carved out in Gissel and Linden Lumber to re-adopt the Joy Silk doctrine. Neither case proposes to resolve what the Labor Board must do in the realm of recognition requests.³³⁶ The Supreme Court expressly refused to consider the matter of good faith in Gissel on the assurances of the agency’s advocate,³³⁷ and Linden Lumber merely approved of the Board’s rule as a permissible reading of the NLRA in the most reserved language possible.³³⁸ The Board has successfully overruled precedent that previously earned Supreme Court approval,³³⁹ and the Court’s acknowledgment of the good-faith doubt test in Arkansas Oak Flooring can pave the road for the attorneys who litigate the doctrinal transition. The administrative argument should be relatively simple: the Board is entitled to deference in its formulations of national labor policy,³⁴⁰ this deference extends even to departures from prior policy,³⁴¹ and Joy Silk itself represented a permissible interpretation of the statute.³⁴² There is abundant evidence for the Board to determine “in light of changing industrial practices” and the agency’s “cumulative experience in dealing with labor-management relations” that the need exists to reclaim the good-faith doubt test and again enforce Section 8(a)(5) in the pre-recognition context.³⁴³

Second, Joy Silk was not a silver bullet in its time and thus cannot be one today. While the good-faith doubt test was adept in preventing unfair labor practices and establishing collective bargaining relationships, the remedy had much less influence in securing first contracts between unions and employers. One contemporary study found that while 49% of the unions that benefited from a Joy Silk bargaining order were able to eventually obtain a collective bargaining agreement, a relatively encouraging number,³⁴⁴ this figure fell to 23% in cases where employers exhausted their appeals in litigation.³⁴⁵ The author of that study recommended that the NLRB adopt a “make-whole” compensatory remedy for any losses employees sustain as a result of their employer’s failure to bargain in good faith, which was then under consideration by the agency.³⁴⁶ Despite the D.C. Circuit determining that such relief in Section 8(a)(5) cases is “necessary to implement the goals of the Act,”³⁴⁷ the Labor Board has refused to exercise this power.³⁴⁸ General Counsel Abruzzo, likely realizing the natural pairing of this remedy with Joy Silk, included such make-whole relief in her debut memorandum.³⁴⁹

This Article will end where it began: by admiring the language of Frank Bros. The Supreme Court could not have been clearer in its unanimous decision that the NLRB possessed the authority to issue bargaining orders and was to be given maximum flexibility in honing the remedy to counter “frustrations of the Act” and “expunge[]” the unlawful conduct of “recalcitrant” employers.³⁵⁰ The economic and legal climate affecting the core concern of Wagner Act-era industrial relations—that is, the unwillingness of employers to collectively bargain with the majority representative of their employees—has not changed precipitously since the time these words were written. Indeed, defiance of the NLRA remains robust, and private-sector bargaining relationships are at their most endangered since the statute was passed. The concessions made to the labor bar in the late 1960s described in this Article proved unworkable in practice and placed the Labor Board in a permanent defensive posture regarding its bargaining order remedy. Reviving the good-faith doubt test of Joy Silk and enforcing Section 8(a)(5) as written would better encapsulate the bargaining orders envisioned in Frank Bros. and equip the Board with a tool historically proven to prevent misconduct in elections. Few initiatives in General Counsel Abruzzo’s agenda could prove more effective in carrying forth the Board’s statutory mission.

*J.D. 2018, University of Kentucky College of Law. Member, Indiana Bar. In the course of writing this Article, the author was hired as a field attorney in the National Labor Relations Board’s Indianapolis regional office. The following analysis represents the opinions and views of the author alone, and does not constitute, nor should it be construed as, representing the views of the National Labor Relations Board, its General Counsel, or any of its Regional offices.