NLRB General Counsel Files Brief To Ban "Captive Audience" Meetings, Install Back-Door Card Check
QUICK FACTS:
On Tuesday, the National Labor Relations Board (NLRB) published a brief filed by the NLRB General Counsel’s office to overturn decades worth of case law, in several major areas.
The 93-page brief urges the full NLRB to do a number of things to help unions unionize workers, including (but not limited to):
Ban employers’ ability to hold so-called “captive audience” meetings, as well as
Effectively eliminate secret-ballot election by ordering an employer to bargain with a union unless it can prove good-faith doubt of a union’s majority status.
Read the full 93-page brief here
BACKGROUND:
Since she assumed her position last year, National Labor Relations Board General Counsel Jennifer Abruzzo has made clear her intent to, among other things:
Effectively eliminate secret-ballot elections and, just last week…
Ban employers ability to hold mandatory meetings with employees to discuss the exercise of their NLRA Section Seven rights.
On Tuesday, in a case involving Cemex Construction Materials Pacific, the National Labor Relations Board (NLRB) published the NLRB General Counsel’s 93-page briefing urging the National Labor Relation Board to overturn more than 70-years of case law.
In the Cemex brief, Fernando Anzaldua, the Counsel of the General Counsel (CGC) urges the NLRB to change numerous NLRB standards to make it easier for unions to unionize workers, including, by:
Holding “that an employer violates Section 8(a)(1) of the Act when it explicitly misrepresents an employee’s right under the proviso to Section 9(a) to deal directly with their employer after selecting an exclusive bargaining representative.” [p.4]
Reinstating “the doctrine under Joy Silk Mills, Inc., prospectively, because the Board’s current remedial scheme has failed to deter unfair labor practices during union organizing drives and provide for free and fair elections.” [p.5]
Overruling Babcock & Wilcox Co. and “hold that an employer violates Section 8(a)(1) of the Act when it threatens employees with reprisal if they decline to listen to speech concerning employee exercise of Section 7 rights.” [p. 5]
DETAILS:
A Direct Relationship Or Different?
Notwithstanding the fact that the National Labor Relations Board’s own Basic Guide to the National Labor Relations Act [in PDF] that:
Section 9(a) provides that the employee representatives that have been “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining.”
and…
Once a collective-bargaining representative has been designated or selected by its employees, it is illegal for an employer to bargain with individual employees, with a group of employees, or with another employee representative.
The NLRB’s General Counsel would like it to be unlawful for an employer to tell employees that, if unionized, they would no longer have right to deal directly with their employer1.
While, under the law, unionized employees can “present grievances to their employer and to have such grievances adjusted without the intervention of the bargaining representative,” there are limitations [see footnote].
Moreover, from a practical standpoint, many unions—depending on their union constitutions—prohibit union members from bypassing a union to represent themselves.
However, the NLRB’s General Counsel, who also served at the NLRB during the Obama presidency, appears ready to reverse a legal standard that has been around since 1985.
The Joy Silk Doctrine (aka ‘Back-Door Card Check’)
Last year, when GC Abruzzo issued her August 12th Mandatory Submission to Advice Memorandum, labor relations practitioners first became aware of the General Counsel’s desire to effectively eliminate secret-ballot elections by utilizing a long-forgotten process called the Joy Silk doctrine, named after a case called Joy Silk Mills, 85 NLRB 1263 (1949).
The Joy Silk doctrine, as Fast Company noted earlier this year, “would make it more common for workers to form a union without an election—making voluntary recognition essentially the default, unless the employer has good reason to believe a majority of its do not workers want a union.”
In the Cemex brief, the CGC writes:
In Joy Silk, the Board announced its “good faith doubt” test under which it would order an employer to recognize and bargain with a union, where the union presented evidence of a card majority and the employer refused recognition but was unable to establish a good faith doubt as to the union’s majority status. In determining whether the employer had refused recognition in good faith, the Board considered all relevant circumstances, including any unlawful employer conduct, the sequence of events, and the time lapse between the refusal and the unlawful conduct. While in most cases the Board relied on the employer’s unfair labor practices as part of its determination to issue a bargaining order, in some instances, the Board found that other circumstances demonstrated a lack of good faith notwithstanding the absence of unfair labor practices. [p. 37, emphasis added.]
In addition, the CGC explains:
…Joy Silk balances employees’ interest in access to the Board’s secret ballot election process with their right to select a representative through alternative means such as through authorization cards because, at most, it limits access to the election process to scenarios in which the employer acts in bad faith when presented with proof of majority status. [p.41, emphasis added.]
However, somewhat disingenuously, the CGC later states:
Employees who later wish to disavow their union can simply file a decertification petition, as there is nothing permanent in a bargaining order [p. 41, emphasis added.]
Most labor practitioners—regardless whether on the employer or union side—know that decertifying a union is not ‘simple’ and, if there is a contract in place, the NLRB bars decertification elections, excepting during a very narrow window of time. [See Contract Bar Doctrine]
Banning “Captive Audience Meetings”
Earlier this year, General Counsel Abruzzo stated publicly that she would like to ban employers from mandatory meetings (so-called “captive audience meetings”) with employees regarding unionization.
Then, last week, GC Abruzzo issued a memo to all NLRB field office announcing that “she will ask the Board to find mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, including captive audience meetings, a violation of the National Labor Relations Act (NLRA).”
In the Cemex brief, the CGC states:
Mandatory meetings held by employers (including but not limited to those commonly referred to as captive-audience meetings) in which employees are forced to listen to their employer’s speech concerning their exercise of Section 7 rights inherently involve a threat of reprisal to employees for exercising the protected right to refrain from listening to such speech. That threat therefore violates Section 8(a)(1) of the Act. Because such meetings involve a threat of reprisal to employees for exercising the protected right to refrain, they fall outside the scope of Section 8(c), which shields from unfair-labor-practice liability only expression that “contains no threat of reprisal or force.” [p. 46, emphasis added]
The CGC further writes that the NLRB should:
…hold that, as a matter of law, reasonable employees will perceive an implicit, if not explicit, threat of reprisal for exercising their right to refrain from listening to their employer’s speech concerning their exercise of Section 7 rights in two circumstances: when they are (1) convened on paid time or (2) cornered while performing their job duties. In both cases, employees constitute a captive audience, compelled to listen by a threat of discipline, discharge, or other reprisal. [p. 47, emphasis added]
Assuming that the Democrat-majority on the NLRB will agree to ban employers’ ability to hold mandatory meetings, or speak with employees while working does not eliminate employers’ ability or right to communicate—as long as it is voluntary communication.
The GC’s suggested method for employer communication
The NLRB GC recommends the following:
If an employer convenes employees for a Section 7 meeting on paid time, it must satisfy the following requirements to make the meeting voluntary. First, the employer must explain the purpose of the meeting. Second, the employer must assure employees:
a. that attendance is voluntary,
b. that if they attend, they will be free to leave at any time,
c. that nonattendance will not result in reprisals (including loss of pay if the meeting occurs during their regularly scheduled working hours), and
d. that attendance will not result in rewards or benefits.
If an employer announces a meeting in advance, it must reiterate the explanation and assurances set forth above at the start of the meeting. Finally, the meeting must occur in a context free from employer hostility to the exercise of Section 7 rights. [p.59]
Further:
If an employer corners employees to address them concerning their exercise of Section 7 rights, it must satisfy the following requirements to ensure that the meeting is voluntary. First, the employer must explain the purpose of the encounter. Second, the employer must assure employees:
a. that participation is voluntary,
b. that nonparticipation will not result in reprisals (including loss of pay), and
c. that participation will not result in rewards or benefits.
Furthermore, because employees cannot ordinarily choose to leave their work area, the employer must obtain affirmative consent to talk to the employees there and assure them that they may end the encounter at any time without loss of pay (either by leaving or by asking the employer to stop).
While there is no timeline for the NLRB to rule on the Cemex case, given the political make up of the full NLRB—three Democrats and two Republicans—it should be expected that most, if not all, of the General Counsel’s recommendations will be accepted.
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While, technically, employers cannot directly deal with employees, unionized individual employees do retain certain rights under the National Labor Relations Act, as follows:
Section 9(a) provides that any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted without the intervention of the bargaining representative provided:
The adjustment is not inconsistent with the terms of any collective-bargaining agreement then in effect.
The bargaining representative has been given the opportunity to be present at such adjustment.
This is scary!