A ULP Charges Filed Against Amazon May Challenge ALL Employers' Right to Hold 'Captive Audience Meetings'
The RWDSU hopes the charges filed with the NLRB will be 'precedent setting' to limit the right of employers from holding mandatory meetings to talk about unionization.
QUICK FACTS:
The RWDSU, the union trying to unionize Amazon workers in a second, rerun election in Bessemer, Alabama announced it is filing new charges against Amazon with the National Labor Relations Board (NLRB).
Among the allegations is that Amazon is violating of Section 8 (a)(1) and/or 8 (a)(3) of the Act by conducting mandatory meetings with workers, which unions call ‘captive audience meetings.’
The RWDSU states that it is hoping the NLRB rules that so-called captive audience meetings are unlawful and that it will set a precedent to provide “equal time” for union organizers to speak with workers.
Why it matters: If the National Labor Relations Board sets a precedent of either banning so-called ‘captive audience meetings,’ or requiring employers to give union organizers “equal time,” employers may be led to believe they cannot inform their employees during union campaigns resulting in greater unionization rates.
DETAILS:
On Tuesday, the Retail, Wholesale and Department Store Union (RWDSU) announced in a press release that it will be filing new charges against Amazon on behalf of workers in Bessemer, Alabama.
The union is in the midst of a “rerun” election that was ordered by National Labor Relations Board (NLRB) ruled that Amazon had violated the law, overturning an April 2021 election wherein Amazon employees overwhelmingly rejected unionization.
RWDSU’S THREE ALLEGATIONS
In the RWDSU’s press release, the union alleges that Amazon is violating its employees’ rights by:
Taking down union literature in breakrooms, and
Promulgating a new rule “limiting workers’ access inside the facility for any time period greater than 30-minutes prior to and after their shift.”
However, it is the third allegation that may end up affecting all employers across the nation when facing a union organizing campaign.
In its third allegation, the RWDSU is alleging that employers holding mandatory meetings during union organizing campaigns is inherently coercive to employees exercising their rights.
Challenge Captive-Audience Meetings: Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” When workers are forced to attend required meetings during work-hours to hear the company’s anti-union propaganda that violates their right “to refrain from any or all such activities.” This ULP charges that Amazon is in violation of Section 8 (a)(1) and/or 8 (a)(3) of the Act and seeks to challenge the current, yet often challenged, case-law precedent, which has for too long allowed employers to compel attendance to anti-union meetings. These aptly named “Captive-Audience” meetings are coercive and workers should have the right, as is already protected under the law in Section 8, to not engage in them. The ULP charge seeks remedy via review of this law by the newly seated NLRB. [Emphasis added.]
The union then goes on to quote several Amazon employees, as well as two former union-side NLRB members, Wilma Liebman and Craig Becker.
“Amazon does not have the right to force employees to listen to its anti-union messages. That is not free speech, it is coercion,” said Craig Becker, General Counsel to the AFL-CIO and former Member of the NLRB.
However, it is near the end of the union’s press release that the union states its rationale:
RWDSU’S BACKGROUND ON THE CAPTIVE-AUDIENCE ULP CHARGE:
In MEMORANDUM GC 21-06, to All NLRB Regional Directors, Officers-in-Charge, and Resident Officers, the General Counsel of the NLRB Jennifer A. Abruzzo, requests that:
“Cases involving unlawful conduct committed during a union organizing drive present particular challenges with respect to remedies. It goes without saying that the “laboratory conditions” necessary for a free and fair election are often difficult to restore sufficiently in the face of unlawful firings, threats of retaliation, surveillance, and other coercive tactics designed to root out and squelch union support among employees. However, effective remedies still remain at our disposal. The following, which does not represent an exhaustive list, are remedies that Regions should seek from the Board in all appropriate cases:
Union access (e.g., requiring an employer to provide a union with employee contact information, equal time to address employees if they are convened by their employer for a “captive audience” meeting about union representation, and reasonable access to an employer’s bulletin boards and all places where notices to employees are customarily posted).”
While it remains to be seen what the current NLRB’s remedies will be with respect to the charges against Amazon, it is reasonable to assume that, given the NLRB’s General Counsel’s prior statements and memos [in PDF], employers can expect to be order to provide any number of things that the General Counsel indicated, such as:
Union access (e.g., requiring an employer to provide a union with employee contact information1, equal time to address employees if they are convened by their employer for a “captive audience” meeting about union representation2, and reasonable access to an employer’s bulletin boards and all places where notices to employees are customarily posted);
Reimbursement of organizational costs (e.g., requiring an employer to pay for organizational costs that a union incurs in a re-run election because the employer has engaged in unlawful conduct sufficiently egregious as to cause the results of the prior election to be set aside);
Reading of the Notice to Employees and the Explanation of Rights to employees by a principal or, in the alternative, by a Board Agent, in the presence of supervisors and managers, with union representatives being permitted to attend all such readings (see footnote 2), or, where appropriate, video recording of the reading of the notice and the Explanation of Rights, with the recording being distributed to employees by electronic means or by mail;
As the RWDSU referenced the NLRB General Counsel’s 21-06 memo, one might also bear in mind that, within the specific memo, the General Counsel referenced an earlier memo (21-04) by stating:
As for bargaining orders in cases involving union organizing drives, I refer you to GC Memorandum 21-04 (issued August 12, 2021). In it, I directed Regions to submit cases to the Division of Advice in which an employer refuses to recognize and bargain with a union where the union presents evidence of a card majority and the employer is unable to establish a good faith doubt as to majority status. As I consider Joy Silk-type bargaining orders, Regions should actively seek Gissel bargaining orders where appropriate. [Emphasis added.]
For a deeper discussion of the Joy Silk Doctrine, go here.
Bearing in mind that the RWDSU’s argument, and the NLRB’s objective, is to eliminate mandatory meetings to discuss unionization, there is nothing published that indicates the elimination of voluntary meetings.
Until such time as the NLRB establishes a framework of “rules”—which may take many months and, perhaps longer—all parties will just have to wait and see.
Note: Employers are already required to furnish employee contact information once the NLRB schedules a secret ballot election. This infers that the NLRB would require an employer to provide employee contact information before a union files for an election.
The concept of “equal time” (i.e., requiring an employer to pay employees to listen to a union organizer) and being required to allow a union organizer onto an employer’s private property may encounter significant legal challenges on Constitutional grounds (e.g., the “takings clause,” as well as “property rights”)