Wednesday, April 27, 2022

Labor unions are doing just fine without the NLRB’s help

Over the past decade, labor unions win between 65 and 70 percent of representation elections. Given organized labor's recent more high-profile victories, I expect that number to increase for 2022. So then why is the NLRB hellbent on helping unions win even more?

The NLRB's general counsel, Jennifer Abruzzo, recently filed a brief in a case pending before the Board, Cemex Construction Materials Pacific, asking it to overturn decades of well-established precedent on employers' rights in union organizing campaigns. Specifically, she seeks to:
  1. Ban "captive audience" meetings.
  2. Eliminate secret-ballot union elections by requiring employers to recognize and bargain in most cases upon the presentation of a majority number of signed authorization cards
  3. Prohibit an employer from providing employees legally correct information about how the employer-employee relationship might (will) change once they vote in a union to represent them.
Let's take a look at each of these significant proposed changes.

"Captive Audience" Meetings

A "captive audience" meeting is a mandatory meeting held during work hours in which an employer expresses its views on the union organizing drive and why employees should consider voting "no." They are either held in large townhall style audiences or in smaller groups or one-on-ones with a supervisor. 

Abruzzo argues that such meetings "inherently involve a threat of reprisal to employees for exercising the protected right to refrain from listening to such speech." She also seeks to undo 75 years of NLRB precedent and practice. 

She seeks a rule under which an employer can only express its views to employees after first "Mirandizing" them with the following disclosures, all free from any hostility to unions or union organizing, coercion, threats, or polling:
  • The purpose of the questioning;
  • An assurance that no reprisal will take place; and
  • A confirmation of voluntary participation by the employee
Secret-Ballot Elections / Card Check Authorization

A union can organize employees in one of two ways, either through a secret-ballot election overseen by the NLRB or by voluntary recognition by an employer. Abruzzo seeks to eliminate the former by requiring that an employer voluntarily recognize a union upon its presentation of authorization cards signed by a majority of employees. In this instance, an employer would be entitled to a secret ballot election only if it can demonstrate a "good faith doubt" as to the union's majority status. Absent that "good faith doubt," the NLRB would order the employer to recognize and bargain with the union with no secret-ballot election. 

Communication About the Employer-Employee Relationship

Under Section 9(a) of the NLRA, as interpreted by the NLRB since its 1985 Tri-Cast decision, an employer may lawfully tell its employees that a union victory will grant exclusive bargaining and representation rights to the union and will curtail the ability of employees to deal directly with management. Abruzzo wants the Board to overrule Tri-Cast and find that employer statements about limited employee access to management constitute "unlawful threats of the loss of existing benefits." 

Each of these three changes are significant and will result in a fundamental change in how employers communicate with employees about union organizing. Stay tuned. Any Board ruling in Abruzzo's favor on any of these issues will result in a significant uptick in union organizing and the further hamstringing of how employers can lawfully respond.