2022 is a banner year for union organizing. 1,411 U.S. workplaces filed petitions with the National Labor Relations Board according to a Wall Street Journal analysis of federal data, which represents a 69% increase from the same period in 2021 and the most of any year since 2015. Yet only 10.3% of workers were in unions, down from 29.3% in 1964 according to studies. Of the 1,411 workplaces filing petitions filed, about 400, representing more than 21,000 workers, have already voted in favor of a union and around 150, representing almost 7,800 people, have voted no to unionization. However, if General Counsel Jennifer Abruzzo has her way, all employees should be organized.
General Counsel Abruzzo said in a guidance memorandum issued to field staff in April that she believes that compelling attendance at anti-union meetings suppresses workers' organizing rights. "Those meetings inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech," Abruzzo said. "I believe that the NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language, and our congressional mandate."
The decision under attack by Abruzzo is from 1948. In 1947 Congress amended the National Relations Labor Act by giving employers more power to respond to union organizing. In the Babcock & Wilcox Co. case in 1948, the NLRB allowed the employer to hold compulsory anti-union meetings dismissing a claim that the manufacturer coerced workers by compelling them to attend anti-union speeches.
Now Abruzzo is telling the field staff to find a case that can be used to overturn Babcock & Wilson, as the majority of the NLRB is democratic and will vote to overturn the precedent. She is raising the issues dismissed by Babcock by calling the case an "anomaly in labor law" in that employers can "use express or implied threats" to require employers to sit in employer mandated meetings or lose their jobs. Whether her description of employee anti-union meetings is that threatening or not is subject to debate, but it is the principle and the amended law she wants to overturn by NLRB vote.
The general counsel said she will argue that meetings are coercive in two circumstances: when workers are forced to meet on paid time or when they are "cornered by management while performing their job duties.” In “both cases, employees constitute a captive audience deprived of their statutory right to refrain, and instead are compelled to listen by threat of discipline, discharge or other reprisal," she said.
Amazon was hit with a violation last May when the NLRB Regional Director sided with organizers against Amazon over the company's mandatory gatherings at its Staten Island facility. Starbucks was also hit with allegations of illegally fired workers in Kansas and Missouri over these mandatory meetings.
As a result of the memo, some employers have started to fight back. In July, in a 10-page complaint ,five staffing agencies (Burnett Specialists, Staff Force Personnel Services, Allegiance Staffing Corp., Link Staffing, and LeadingEdge Personnel Ltd. ) sued the NLRB stating that the agency violated their First Amendment rights when Abruzzo’s memo was made public detailing plans to reverse board precedent on captive audience meetings and find that the gatherings are unlawful.
The meetings are lawful said Nate Curtisi, who represents the staffing agencies. "They just want to be able to speak frankly, find out the concerns of their employees, tell them what they think unionization would do — obviously no goal of retaliating or coercion," Curtisi said. "They just want to be able to talk."
Additional ASE Resources
Ask the Lawyer: Why You Should be Worried About the NLRB as a Nonunion Employer
November 10, 2022; 9:00 a.m. - 10:00 a.m.
The NLRB is trying to return to the Obama Administration’s activist approach from policies to actions and pushing the envelope on settlements. Nonunion employers have to beware. Joint employment and independent contractor status is in the crosshairs of the agency and many nonunion cases have set precedent in the past under the guise of “concerted action by employees.”
This session will cover:
- Brief history of NLRB
- How the NLRB has impacted nonunion employers in the past
- How this NLRB is different than previous Boards
- What issues nonunion employers should know about
- Proactive actions nonunion employers would take now to reduce risks
Michael Blum, Attorney, Foster Swift Collins & Smith PC
Cliff Hammond, Attorney, Foster Swift Collins & Smith PC
Source: Law360 7/20/22, Law360 4/7/22, Wall Street Journal 7/12/22, Marketplace 2/25/22