Employment Law Report
NLRB Clamps Down on Employer Messaging in Union Campaigns
By: Mitzi Wyrick
In two recent decisions, the National Labor Relations Board (“NLRB”) has reversed years of existing precedent and restricted both what employers can say to their employees in response to a union campaign and where they can say it. Both decisions apply prospectively.
Captive Audience Meetings. Taking away one of the most commonly-used employer responses to organizing campaigns, in Amazon.com Services LLC, the NLRB ruled that an employer violates the National Labor Relations Act (“NLRA”) by requiring employees to attend meetings under threat of discipline or discharge in which the employer expresses its views on unionization. Reversing Babcock & Wilcox Co., 77 NLRB 577 (1948), which had been the law for over seventy-five years, the NLRB held that captive audience meetings violate Section 8(a)(1) of the NLRA because they have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 rights. The NLRB reasoned that captive audience meetings interfered with an employee’s right under Section 7 to freely decide whether, when, and how to participate in a debate concerning union representation, or to refrain from doing so. Captive audience meetings also allow an employer to observe and surveil employees (such as where employees sit or how they respond, verbally or nonverbally, to the employer’s message). And an employer’s ability to compel attendance creates a coercive message regarding unionization that employees are forced to receive.
An employer will be found to have compelled attendance at a meeting concerning the employer’s union views if, under all the circumstances, employees could reasonably conclude that attendance at the meeting is required as part of their job duties or could reasonably conclude that their failure to attend or remain at the meeting could subject them to discharge, discipline, or any other adverse consequences. An express order from a supervisor, manager, or other agent of the employer to attend such a meeting is sufficient, but not always necessary, to establish a violation. Moreover, attendance at a meeting that is included on employees’ work schedules, as communicated by a supervisor, manager, or other agent of the employer, will be considered to be compelled.
Even so, the NLRB provided a safe harbor for employers that wish to express their views on unionization to employees. An employer may lawfully hold meetings with workers to express its views on unionization so long as workers are provided reasonable advance notice: (1) of the subject of the meeting; (2) that attendance is voluntary with no adverse consequences for leaving or failure to attend; and (3) that no attendance records of the meeting will be kept.
Employers’ Statements about Unions. In Siren Retail Corp. d/b/a Starbucks, the NLRB reversed a forty-year old ruling in Tri-Cast, Inc. and held that employers likely violated the law by informing employees that having a union would result in the loss of a direct relationship between employees and management.
The NLRB found that these statements were unlawfully threatening. In doing so, the NLRB adopted a new standard for evaluating employers’ statements on the impact of unionization on the employer-employee relationship in the workplace.
To be permitted, the NLRB requires that employers’ statements on the impact of unionization be carefully phrased “on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond [its] control.” If an employer’s statements about unionization do not pass this test, then it will be considered “a threat of retaliation based on misrepresentation and coercion.” Employers will have to carefully phrase any sentiments about the impact of unionization on the employer-employee relationship to avoid an unfair labor practice charge.
With the upcoming change in administration, these rulings may be short-lived. A new General Counsel is expected to be appointed who will likely seek reversal of these rulings. And given the significant First Amendment issues and the Supreme Court’s rollback of Chevron deference, court challenges to these rulings are expected. But until the rulings are reversed, employers must exercise caution in responding to a union-organizing campaign.
