May 25, 2022 – For the past several decades, private sector unionization rates have been on the decline (for a host of reasons). During his campaign and over the first 16 months of his tenure in office, however, President Biden publicly declared his intention to reverse this course. And perhaps no decision by the president has been more significant in this regard than his July 2021 appointment of Jennifer Abruzzo to serve as General Counsel of the National Labor Relations Board (NLRB), the federal agency tasked with enforcing U.S. labor law.
Since Abruzzo’s appointment, employers have witnessed a significant push to increase unionization efforts across the U.S. workforce and for the NLRB to adopt, or in some cases reinstate, extremely employee- and union-friendly legal standards. Indeed, Abruzzo’s first memo as NLRB General Counsel called for the agency to reinstate a doctrine — abandoned by the NLRB in the 1960s — that would require an employer to recognize and bargain with a union based on signed authorization cards indicating majority worker support rather than after an election. Further still, the General Counsel is now seeking to significantly restrict an employer’s ability to discuss the potential impact of unionization with its employees.
This article will address the General Counsel’s recent efforts aimed at significantly restricting employers’ rights to discuss unionization with their workforce.
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General counsel seeks to overturn decades of NLRB precedent, eliminate ‘captive Audience’ meetings
A significant part of the General Counsel’s efforts has focused on curtailing employers’ use of so-called “captive audience” meetings. These are meetings in which employers meet with groups of employees, or occasionally just with an individual employee, to discuss the employers’ opinion on whether unionization is in employees’ best interest. “Captive audience” meetings can be mandatory and, therefore, employees may be disciplined for their failure to attend.
Notably, since the agency’s 1946 ruling in Babcock & Wilcox Co., the NLRB has consistently held that employers are permitted to hold such meetings with employees to generally discuss their position on unions. The General Counsel now seeks to change that.
On April 7, 2022, the General Counsel issued a memo directed to NLRB Regional Directors, Officers-in Charge, and Resident Officers, advising that she is seeking to ban any employer-initiated meeting concerning unionization where employees have a reasonable perception that they will be subject to reprisal if they do not attend. The exceedingly broad standard urged by the General Counsel’s memo would encompass not necessarily just “captive audience” meetings but, also, potentially any meeting during paid working time where unionization is discussed.
According to the General Counsel, such meetings violate employees’ right to refrain from listening to employer speech regarding unions in violation of Section 7 of the National Labor Relations Act (NLRA). The memo’s stated reason for banning “captive audience” meetings is that they urge employees to reject a union, which is inherently coercive in violation of Section 7.
Just days after issuing this memo, on April 11, the General Counsel filed a brief in Cemex Construction Materials Pacific, LLC asking the NLRB to find, among other things, that “captive audience” meetings violate the NLRA and that employers’ opinions to employees that misrepresent the role of the union violate the NLRA.
As noted, the General Counsel’s position flouts decades of NLRB precedent. It is also arguably superfluous given that the NLRA currently prohibits employers from, among other things, retaliating against employees for engaging in union organizing efforts, threatening employees with adverse consequences if they support a union, or promising employment benefits if they reject a union. Accordingly, the NLRA already has significant protections in place for employees to make an informed and voluntary choice about representation without unlawful employer intervention. These are all among the reasons why “captive audience” and similar meetings have been green-lit by the NLRB for more than 75 years.
Brief seeks to significantly restrict employer speech in contradiction of decades of Supreme Court and NLRB precedent
The General Counsel’s efforts to eradicate “captive audience” meetings, however, are only one part of her broader undertaking to increase private sector unionization. Indeed, in the April 11 brief before the NLRB in the Cemex Construction case, the General Coun
sel has also urged the NLRB to find that a commonly expressed employer opinion addressing the limitations of employees being able to resolve workplace issues directly with an employer, violates the NLRA.
The General Counsel’s theory is rooted in the fact that an employer can still hear workplace grievances directly from an employee who is represented by a union. The employer must just inform the union of the grievance, and the union must be involved in resolving the grievance. As a result, the General Counsel claims that the employer’s opinion misrepresents how a union operates and is actually threatening a loss of benefits, which is a violation of the NLRA.
If the NLRB sides with the General Counsel, employers’ ability to express any negative opinion regarding unions will likely be significantly diminished. Indeed, employers being unable to resolve issues directly with an employee or to grant personal requests are regularly conveyed downsides of employees deciding to unionize. That being said, the U.S. Supreme Court has held that employers’ right to express union opinions to their employees is protected by the First Amendment. Accordingly, the NLRB would have to find that these opinions are so coercive as to fall outside First Amendment protection.
Brief seeks to eliminate union elections in many circumstances
In a further attempt to diminish employers’ practical ability to provide employees with information regarding unionization, the General Counsel’s brief in Cemex Construction also seeks to require an employer to bargain with a union with merely a majority of signed authorization cards — without a secret-ballot election or pre-election campaign.
Absent a severe unfair labor practice, employers currently have the right to request an NLRB-supervised secret-ballot election and pre-election campaign after being presented with signed authorization cards indicating majority employee union support. Secret-ballot elections and pre-election campaigns are critical to ensuring that all employees make an informed choice, free from external pressure, on whether to vote for or against a union.
The pre-election campaign gives employees necessary time to take in and evaluate information from the employer, union, and elsewhere to make knowledgeable decisions about whether a union is right for them. Secret-ballot elections ensure that employees make this choice free from outside influences as neither the employer nor the union will know how they voted. The General Counsel aims to virtually eradicate this.
In this brief, the General Counsel asks the NLRB to reinstate the Joy Silk doctrine and require employers to recognize and bargain with a union with merely a majority of signed authorization cards. This doctrine arose from the NLRB’s 1949 decision in Joy Silk Mills, Inc. which found that the employer had committed an unfair labor practice by requiring the union to prove its majority status in an election after the union provided a majority of signed authorization cards.
Under the Joy Silk doctrine, an election is only required if the employer meets its burden to demonstrate good faith doubt that the union actually has majority support. The General Counsel claims that a return to this doctrine is necessary because of employers’ “union-busting” tactics.
However, the Joy Silk doctrine was abandoned in the 1960s after the U.S. Supreme Court ruled in Gissel Packing Co. that an employer’s duty to bargain with a union was not triggered with only signed authorization cards. Accordingly, any NLRB decision reinstating Joy Silk would be in direct contradiction of Supreme Court precedent.
If the NLRB sides with the General Counsel on even one of these issues, the decision will have dramatic impacts on organizing campaigns throughout the country. Indeed, any employer discussions with employees regarding unionizing will necessarily involve legal risk. Further, employers will likely see their speech rights regarding unions even further diminished. Perhaps even more importantly, employees will likely not receive all pertinent information regarding unionization and will be unable to make an informed choice regarding whether unionization is in their best interest.
In light of all this, employers should pay close attention to upcoming NLRB decisions as they will likely have a significant impact on unionization efforts throughout the country.
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