News & Commentary

August 25, 2023

Julio Colby

Julio Colby is a student at Harvard Law School.

In Today’s News and Commentary: the NLRB revives the Joy Silk doctrine; OSHA releases options for a worker heat stress rule; and the DOJ sues SpaceX for discrimination against refugees and asylees.

Today, the NLRB resurrected the Joy Silk doctrine, requiring employers to recognize and bargain with a union selected as a designated representative by a majority of workers without requiring a union election. In its 1949 decision in Joy Silk Mills, the NLRB held that an employer must recognize and bargain with a union that presents authorization cards signed by a majority of workers unless they have a good-faith reason to doubt that support. Under Joy Silk’s analysis, an employer’s good-faith doubt is determined based on all relevant facts in the case, including any unlawful conduct by the employer. 25 years later, the Board reversed course in Linden Lumber Division, Summer & Co., holding that an employer does not violate Section 8(a)(5) by refusing to accept majority status except by Board election, a conclusion affirmed as a permissible construction of the statute by a 5-4 Supreme Court.

Now, in Cemex Construction Materials Pacific, the Board reverted to a standard similar to Joy Silk, holding that an employer violates Section 8(a)(5) by refusing to recognize a union designated as bargaining representative by a majority of workers unless the employer promptly files a petition under Section 9(c)(1)(B). Upon filing the petition, the Board will determine if a question of representation exists and, if so, order a secret ballot election. However, if the employer commits an unfair labor practice requiring the election to be set aside, the petition will be dismissed and the employer will be subject to a remedial bargaining order. The Board’s decision is seen as a massive win for unions, making it easier to secure representation through card check and reducing the opportunities for employer interference in union elections.

On Thursday, OSHA released possible options for a long-awaited worker heat stress rule. Under the regulatory framework, requirements for protecting workers could be triggered by temperatures as low as 78 degrees, and employers could be required to take additional actions in the event of a heat advisory or warning. (125 million Americans in the South and Midwest were under such a warning on Thursday, and last month was the planet’s hottest on record.) Employers could be required to regularly check temperatures as part of a heat injury and illness prevention plan, which may need to be in writing for employers with more than 10 employees. The proposal includes potential requirements giving workers easy access to one quart of cool water every hour, and at least 10 minutes of rest in a cool or shaded area every two hours. Advocates and legislators have pushed for a rule as record heat waves have led to dozens of heat-related worker deaths. OSHA started the rulemaking process in 2021 and is conducting a small business review this month, but at its current pace, the rule may only be enacted late next year.

On Thursday, the Department of Justice sued SpaceX for discriminating against refugees and asylees who sought jobs at the company. According to the lawsuit, between September 2018 and May 2022, SpaceX recruiters and high-level officials “routinely discouraged asylees and refugees from applying and refused to hire or consider them” based on their citizenship status, in violation of the Immigration and Nationality Act. SpaceX CEO Elon Musk reiterated in a tweet that SpaceX was prohibited from hiring foreign nationals based on information-sharing restrictions related to rocket technology. The DOJ claims that SpaceX job postings wrongly stated that “export control laws” forced them to hire only US citizens and permanent residents, and clarified that asylees and refugees are able to access export-controlled information without additional government approval. Along with claims against Telsa, Musk’s companies have faced a series of age, race, and disability discrimination suits in recent years.

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