The ‘Joy Silk’ doctrine was labor law for 20 decades before it died at the hands of conservatives. Now it could be revived.

 Joy Silk might sound like an experimental fabric or a punk band, but the name actually refers to a U.S. labor law tenet that functioned well for decades until a conservative takeover of the National Labor Relations Board in the 1960s killed it.

In effect for 20 years, Joy Silk was another casualty of a long war on workers.

The National Labor Relations Act (NLRA: the Wagner Act) was enacted in 1935, and opponents have chipped away at it ever since. It gave workers the right to form unions and bargain collectively, and for a decade, it worked. The labor movement grew to about one-third of the nation’s workforce and over the next several years, despite a Republican Congress limiting the law’s scope with the Taft-Hartley Act in 1947, unions remained healthy.

But starting in the 1960s,  membership started eroding due to the Landrum-Griffin Act (1959), President Reagan breaking the air-traffic controllers strike (1981, signaling an OK to “permanenly replace” lawful strikers), and court rulings ranging from “Beck” to “Janus” – all strengthening U.S. business’ relentless opposition to worker rights.

Although the NLRA is still the law, penalties employers face for lawbreaking are so weak that violations became common and organizing relatively rare. In fact, 21^st century employers are charged with violating federal law 41.5% of the time in union lection campaigns, according to data compiled by tbe Economic Policy Institute.

Now, however, the National Labor Relations Board’s Jennifer Abruzzo is trying to actually enforce existing labor laws and revive past practices that were overturned throughout years of fierce attacks on unions.

Confirmed as General Counsel last summer on a party-line vote, Abruzzo became the agency’s chief prosecutor and in recent weeks initiated a series of actions.

First, she said that mandatory, anti-union “captive audience” meetings should be Unfair Labor Practices since they’re coercive behavior – a violation of the NLRA. In her three-page message to NLRB field offices, Abruzzo said these meetings — where employers condemn unions  — “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.”

Limiting such one-sided meetings wouldn’t violate companies’ free-speech rights, she added.

“Imposing that long-overdue protection of employees’ right to refrain will not impair employers’ statutory or constitutional freedom of expression,” she wrote

Next, Abruzzo followed up with memos suggesting requiring employers to reimburse unions for costs incurred in fighting Unfair Labor Practices, increasing “back pay” awards to workers after they are illegally fired, and stepping up use of NLRB injunctions stopping employers’ illegal activities.

But Abruzzo – raised in a union household in Queens and an NLRB attorney for decades – proposed an even more significant idea: calling for the Joy Silk doctrine to be reinstated.

The doctrine grew out of the Joy Silk Mills case in 1949, when the NLRB decided that “if a union provides evidence that a majority of workers want to unionize,” employers should voluntarily recognize the union by default unless they have “good-faith doubt” regarding that evidence. Further, “if there’s an Unfair Labor Practice, meaning the employer broke the law, then it is presumed that the workers wanted to join a union.”

Under Joy Silk, employers who refused to recognize a union’s legitimate majority status had been compelled to recognize the union and to enter into bargaining with it, except in rare instances.

“Currently, a bargaining order may only issue in cases where an ‘employer’s misdeeds are so widespread they make a fair election impossible,’ a standard which the brief argues has ‘failed to deter employers’ from interfering with elections,” writes Fran Swanson from Harvard Law. “Under a return to Joy Silk, an employer would be ordered to recognize and bargain with a union if the union is supported by a majority of workers in the bargaining unit, even absent an election, unless the employer can show that its refusal to bargain is based on its good faith doubt about the union’s majority status.”

Joy Silk, which was established in 1949 by an NLRB dominated by Democrat Harry Truman’s appointees, was essentially dismantled in 1969 when the Board, dominated by Republican Richard Nixon’s appointees, during oral arguments in the Gissell Packing Co. case, said it was abandoning the doctrine.

Although a U.S. Court of Appeals reversed the decision, eventually the U.S. Supreme Court, by a 5-4 vote, agreed with the NLRB’s 1969 decision.

Under Gissel, employers who refused to recognize a union’s legitimate majority status were compelled merely to run or rerun an election among their employees to determine union status. That let employers delay recognition and bargaining, in some cases for years, and to intimidate workers from voting in a union.

Before Joy Silk was struck down, charges of employer intimidation totaled about 1,000 cases a year.

“There were many more elections that were untainted” [by employer intimidation], Abruzzo told The American Prospect magazine.

Once the softball remedies of Gissel became the standard, Unfair Labor Practice charges exploded to a peak of 6,493 in 1981,

Abruzzo’s recommendation has been overlooked for decades,

“Even labor lawyers had forgotten about Joy Silk,” University of California - Berkeley labor law professor Catherine Fisk told The American Prospect.

Abruzzo’s proposal must be considered by the current NLRB. If the full Board agrees with Abruzzo and most of the 500-some lawyers she supervises, the doctrine  probably would have to be considered and applied in a specific case where the situation is applicable – such as the Iron Workers’ dispute with G&S Integrated in Morton.

“Because Joy Silk has been suspended for generations, it’s so much harder than it needs to be or should be to exercise your basic rights as a worker,” said Ben Scroggins, an Iron Workers District Council organizer. “We should have been able to walk in and say, ‘OK, let’s negotiate,’ and not have to continue fighting for months to gain what the workers had already proven — that they are a union.”