The National Labor Relations Board (NLRB) made two announcements recently that should be of concern to all employers with employees not represented by a union. The first announcement was made by the NLRB General Counsel, Jennifer Abruzzo, who announced that she will seek to overturn an employer’s ability to enforce mandatory employee meetings during an organizing campaign. This announcement coincides with another announcement by the NLRB stating they have seen a dramatic increase in union activity nationwide and particularly, they are seeing an increase in union representation petitions filed.
NLRB General Counsel Declares War on Captive Meetings
When an employer is confronted with an organizing effort by employees, an important tool in making the employer’s case to the employees is to hold employee meetings. Often employees are required to attend the meetings during which an employer’s representative describes the reasons the employer is opposed to a union and why it is not in the employees’ best interests to vote for a union to represent them. The meetings offer employers the opportunity to present facts and information that the unions do not give to employees. Employers must be cautious in what they say at these meetings because they cannot make threats about what will occur if the union is voted to be the collective bargaining representative or make threats of disciplinary action that could result for the employees who support the union. Employers can make many arguments that are not threatening or coercive. For example, employers can explain the cost of union dues, make clear that the union cannot make the employer agree to any provision in a collective bargaining agreement, and remind employees that a labor union does not create jobs, customers, or work for the employees. With proper preparation, employee meetings can be an effective way for management to communicate their message and persuade employees to vote against union representation.
This important tool may be in danger. Jennifer Abruzzo, General Counsel for the NLRB, has issued a Memorandum in which she asserts that NLRB cases that allow captive employee meetings should be overturned. In this memorandum, she seeks to restrict employers’ free speech during union organization campaigns.
General Counsel Abruzzo stated in her Memorandum that she believes that mandatory meetings in which employees are forced to listen to their employer’s presentation concerning the exercise of their statutory labor rights 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.” She asserts that NLRB case precedent, which has allowed such meetings, is inconsistent with fundamental labor law principles and the National Labor Relations Act (the “Act”).
Section 8(c) of the Act provides that expression of “views, argument or opinion” that “contains no threat of reprisal or force” is not an unfair labor practice. Nonetheless, General Counsel Abruzzo asserts that despite this language in the Act, previous NLRB precedent was incorrect in holding that an employer does not violate the Act by compelling employees to attend meetings in which it makes speeches urging them to reject union representation. Therefore, she wrote, mandating that employees attend such meetings constitutes a captive audience, deprived of their statutory right to refrain from listening to such explanations. She states that employees are compelled to listen by implying a threat of discipline, discharge, or other reprisal. She argues that employees will feel threatened even though it is not stated explicitly.
Ms. Abruzzo intends to seek a change in well-settled NLRB precedent by charging employers who conduct mandatory employee meetings during an organizational campaign with an unfair labor practice. She wrote that she would propose that the Board adopt “sensible assurances” that an employer must convey to employees in order to make clear that their attendance is truly voluntary. This would include statements that employees are not required to attend the meetings.
Increase in Union Representation Petitions
The NLRB announced that during the first six months of the 2022 fiscal year (October 1-March 31), union representation petitions filed at the NLRB increased by 57%. A representation petition is a petition filed by employees or unions to request that the NLRB conduct an election to determine if employees wish to be represented by a union. In order for the NLRB to proceed with an election, at least 30% of the employees in the bargaining unit (a group of employees with a clear and identifiable community of interest) must sign authorization cards stating that they wish the union to represent them for collective bargaining purposes.
This increase in petitions is not a surprise. We have seen that employees are increasingly coordinating their efforts to challenge employer practices, working conditions, safety conditions and wages. The recent petitions filed at various Amazon and Starbucks sites are examples where employees have decided they need a third party to represent them in their demands for improvements in their wages and working and safety conditions.
This increase in labor activity nationwide is higher than any increase seen by the NLRB in the past 10 years. Employers should prepare now for the possibility that a union may attempt to organize their employees, rather than wait for a representation petition. They should identify what changes and steps they should take now to inoculate their workplace from a union’s effort to represent their employees. Employers should think about improvements in wages, benefits and working conditions that would make employees disinterested in union representation.
The NLRB may well accede to Ms. Abruzzo’s request to overturn the well-settled law and find that it is unlawful for an employer to require employees to attend employee meetings, particularly during an organizational campaign where the employers present nonthreatening arguments and reasons why a union is unnecessary. If the NLRB decides as she is hoping they will, employers will lose a vital tool during an organizational campaign to persuade employees that it is unnecessary and not in their best interests to have a third party represent them. This possibility, combined with the increase in union activity and employee interest in unions, is a warning to employers that they are not immune to union representation.