On April 6, the National Labor Relations Board announced that union representation petitions filed with the agency during the first six months of the fiscal year had increased 57% from the previous year.[1] The very next day, NLRB General Counsel Jennifer Abruzzo announced yet another policy initiative to hamper employer efforts to resist union organizing. See GC 22-04, “The Right to Refrain from Captive Audience and other Mandatory Meetings.”
Specifically, the GC announced that she would seek to overturn decades of NLRB caselaw upholding an employer’s right to compel employees to attend meetings during the workday to hear the employer’s perspective on the pros and cons of union representation. According to the GC, such mandatory meetings constitute impermissible coercion of employees and violate the National Labor Relations Act.
Employers facing union organizing efforts routinely hold mandatory meetings to ensure that employees receive factual information as to what unions can and cannot do, what union representation entails and how collective bargaining works. In GC 22-04, Abruzzo explains that, in her view, requiring employees to listen to such information against their will is coercive of their rights under Section 7 of the NLRA. While noting that the NLRA and the First Amendment to the U.S. Constitution protect an employer’s right to express its views, the GC argues that these protections do not supersede employees’ purported rights to refrain from listening to their employers’ speech on matters pertaining to union organizing or other employee rights under Section 7 of the NLRA.
Consequently, the GC will ask the Board to reconsider current precedent on mandatory meetings (which dates to Babcock & Wilcox Co., 77 NLRB 577 (1948)). If the Board adopts the GC’s position, it will be an unfair labor practice for employers to compel employees to attend meetings concerning union organizing upon penalty of discipline or other reprisal. It bears mentioning that such meetings hardly guarantee success for employers in NLRB elections, as unions are currently winning over 65% of initial representation elections. Nevertheless, coming close on the heels of recent guidance from the GC seeking to instate a de facto “card check” regime by reviving the long-discarded Joy Silk Mills doctrine discussed more fully here, this latest action is yet more proof that the nation’s top labor law enforcer is committed to making good on then-candidate Biden’s vow to be the most pro-union President ever.
For additional information regarding this topic, please contact Robert C. Nagle or the Fox Rothschild attorney with whom you regularly work.
[1] Unfair labor practice filings were up 14% over the same period.