New NLRB Rules Could Signal Increased Unionization

The National Labor Relations Board (“NLRB”) recently proposed two significant changes to how it handles unionization efforts. One overturns years of precedent related to employers’ “captive audience” sessions and the other makes changes to when employers are bound to recognize a new bargaining unit.

Captive Audience

On April 7^th, NLRB General Counsel Jennifer Abruzza published a memorandum to all field offices expressing the General Counsel’s intent to change the National Labor Relation Board’s position on captive audience and mandatory meetings. Ms. Abruzza explained that forcing employees to attend captive audience meetings under threat of discipline discourages employees from exercising their right to refrain from listening to the speech, and is therefore inconsistent with the National Labor Relations Act (“NLRA”).

The memo states that, years ago, the Board incorrectly concluded that an employer does not violate the Act by compelling its employees to attend meetings in which it urges them to reject union representation. As a result of that ruling, employers have commonly used express or implicit threats to force employees into meetings concerning unionization or other statutorily protected activity. And the Board allows employers to make good on those threats by discharging or disciplining employees who assert their right to refrain from listening by failing to attend, or leaving, such mandatory meetings. That license to coerce is an anomaly in labor law, inconsistent with the Act’s protection of employees’ free choice and based on a fundamental misunderstanding of employers’ speech rights.

General Counsel will urge the Board to hold that it violates the NLRA when “captive audience” employees are forced to listen to employer’s persuasive arguments regarding unionization. Critically, the General Counsel is seeking to define “captive audience” as situations in which employees are (1) forced to convene on paid time or (2) cornered by management while performing their job duties.

Recognizing a New Bargaining Unit

On the heels of this memorandum, the General Counsel just submitted a Brief in Support in the case of CEMEX v. Teamsters, 28-RC-232059. The Counsel’s argument would signal a seismic change in how unions are organized and would potentially lead to a substantial increase in unionization throughout the country.

Currently, employers can refuse to recognize a new bargaining unit if the unit is seeking recognition solely on the basis of a card majority, meaning that most employees have signed cards indicating their intention to unionize. Instead, an employer can demand an election overseen by the NLRB. Doing so usually provides the employer ample time to mount an anti-union campaign through such efforts as “captive audience” meetings, among other tools.

This situation can be traced back to the Supreme Court’s decision in Linden Lumber, which held that an employer is not required to recognize a bargaining unit on the basis of card majority alone, as long as the employer had not committed unfair labor practices that impair a union’s electoral process. Currently, courts require bargaining based solely on a card majority only if an employer has engaged in extensive unfair labor practices such that a fair election is highly unlikely or impossible.

The NLRB’s General Counsel now advises overturning Linden Lumber in favor of returning to a 1949 NLRB ruling known as Joy Silk. Joy Silk would bar employers from refusing to recognize a new bargaining unit when presented with a card majority unless the employer could establish a “good faith doubt” as to the union’s majority status.

This shift would have massive implications for employers’ approaches to their employees’ organizing efforts. We have recently seen both Amazon and Starbucks experience large-scale effective unionization for the first time. Employers must be well prepared in advance of such unionization efforts if they hope to avoid unionization. Should these two key procedural changes take effect, an employer will have very little leverage to contest unionization once a card majority is reached.

Given the current administration and make-up of the Board, the likelihood that the Board will make these changes is substantial. It is critical that employers review their employee handbooks, management training programs, and strategic HR initiatives to make sure that management is well prepared to face changes in the labor landscape.