John O'Connor illustration
McKnight’s Editorial Director John O’Connor
John O'Connor
John O’Connor

The Biden administration is eager to revive a labor law doctrine that has lied dormant for more than half a century.

If successful, senior living operators could face an increase in election-free organizing activities, among other challenges.

At issue here is the possible reinstatement of the Joy Silk standard.

For the curious, it was a National Labor Relations Board doctrine that was in effect from 1949 to 1966. The rule allowed workers to form a union by collecting signed authorization cards from a majority of their bargaining unit instead of holding a formal, supervised election.

That was upended by the Gissel doctrine following NLRB v. Gissel Packing Co., Inc. As a result of this change, employers now can reject the authenticity of the cards and opt for an NLRB-run election instead. Perhaps not surprisingly, many employers choose to go this route.

However, Jennifer Abruzzo, who currently is general counsel for the NLRB, wants the Joy Silk standard reinstated. She argues that the NLRB’s current remedial approaches have “failed to deter unfair labor practices during union organizing drives and provide for free and fair elections.”

If she gets her way, that would come as great news for workers contemplating union membership. But it would hardly delight the folks who own and/or manage senior living communities.

For not only would reinstating Joy Silk ease unionization, it also would make penalties against employers violating labor law more severe. Most observers say that another likely result would be the necessity to offer higher wages.

Abruzzo’s proposal to streamline unionization efforts came in the form of a brief filed in Cemex Construction Materials Pacific, LLC. The government’s lawsuit charges that the company obstructed Teamsters union campaigns in 2018 and 2019. Among the alleged indiscretions: retaliation, threats and bribery. The case is scheduled for a hearing in the weeks ahead.

Although only about 6% of private-sector workers belong to unions, about two thirds of Americans approve of labor unions. Should it become easier to join a union, it’s probably a safe bet that the 6% number likely would climb — perhaps substantially.

John O’Connor is editorial director for McKnight’s Senior Living and its sister media brands, McKnight’s Long-Term Care News, which focuses on skilled nursing, and McKnight’s Home Care. Read more of his columns here.