The NLRB’S Planned Assault On Employer Rights During Union Campaigns
AuthorMario R. Bordogna
The National Labor Relations Board has long shown a tendency to be one of the more aggressive of all government agencies which has a direct impact on employers, employees, and the workplace. When leadership in the White House changes, it is often followed by meaningful 180-degree shifts in policy, regulation, and decision-making by the Board. This has long been a challenge for employers in manufacturing, automotive, and other sectors, forcing them to change approach and implementation on many day-to-day subjects – sometimes just every few years – and we’re seeing the exact same thing again now under the current Board.
Since current NLRB General Counsel Jennifer Abruzzo was confirmed not long after President Biden assumed office, the Board has been on a quest to upend existing workplace regulation more than ever – pushing boundaries in ways we haven’t seen even with the typical partisan flip-flopping which has happened over the years at the Board from one administration to the other.
Of course, the National Labor Relations Act (NLRA) does not govern just union activity and instead regulates various forms of workplace conduct regardless of whether a union is in place, but one of the most significant pursuits of GC Abruzzo since she was appointed has involved unions. Specifically, she has been working to abolish one of the most longstanding features of union election campaigns: the employer meeting. With 71% of Americans approving of labor unions according to a Gallup Poll a handful of months ago (the highest level in more than 50 years), and with both union elections and successes rising across all sectors significantly over the last 18 months, the battleground over this very important issue needs to be on the radar of all manufacturing and automotive employers, whether they have a union in place at the present time or not.
While some high-profile union campaigns are well-known from the outset to the employer targeted, many of them fly under the radar, with employees talking among themselves about possibly trying to form a union, obtaining the needed support, and more, over many months. The first time many employers learn about this effort is after sufficient support for the union has already been assembled and the NLRB Union Election Petition lands at the employer’s door. At this point, the employer is playing catch-up, as sentiment has been building in favor of a union while it has enjoyed a long period of uninterrupted, one-sided, anti-employer/pro-union messaging.
To get out the employer’s own message in an effort to even or counter the sentiment once the Election Petition arrives, employers commonly schedule meetings with their employees over the ensuing weeks to discuss the employment relationship, express opinions about the union, and talk about the full picture of what having a union would mean. Even though these discussions have to take place carefully because employers are prohibited from threatening employees or retaliating against them based on their (now known) union activity, these meetings are one of the most critical steps an employer can take to try and avoid a successful union vote, and have been considered lawful since 1948.
For their part, unions have long labeled these meetings “captive audience” meetings. Because employees are often required to attend these meetings, unions paint them in a negative light, as if it is a given that employees don’t care to hear another message, or that it is somehow inappropriate for employers to voice their own perspective about the merits of having a union among the workforce even though the union has been doing exactly that, often secretly, for an extended timeframe.
Within a handful of months after being appointed, GC Abruzzo went public with her position that such meetings violated the National Labor Relations Act, and that the Board would look for an opportunity to establish law that held as much, and thereafter issued a General Counsel Memorandum to all regional directors across the country about finding a case to pursue to accomplish it. That case turned out to be one of the many brought by the Board against Amazon in the aftermath of the unionization effort at two of its warehouses in Staten Island, New York, and now it is coming close to finally percolating all the way through the administrative system for determination by the Board, as a whole, sometime probably in the next handful of months.
If the Board reverses existing precedent about the lawfulness of employer meetings in the Amazon case, it will significantly change not just how employers hold meetings with their employees, but may, in large part, stifle the impact from them altogether. Not only will the content of any meetings that are held be under further legal scrutiny by the Board, there likely will be an increase in disputes about whether such meetings and discussions are “voluntary” or not in the first place.
In environments where unions are always trying to make inroads, like those in automotive and manufacturing especially, this may very well be the biggest and most contested labor-management relations legal issue we’ve seen in the last handful of years. For the time being, we encourage automotive and manufacturing employers to be vigilant in managing their work environments, continue to build good employee relations, and look to keep an ear a bit closer to the ground to pick up dissatisfaction among employees so you aren’t caught off guard by an election petition. Of course, Clark Hill will continue to keep all of our manufacturing, automotive, and other employer clients apprised of developments going forward about this issue and the Amazon case when it is decided.
The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is it intended to be a substitute for professional legal advice.