NLRB Says: Anti-Employer Speech – No Problem; Union-Free Speech – Big Problem - American Society of Employers - Michael Burns

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NLRB Says: Anti-Employer Speech – No Problem; Union-Free Speech – Big Problem

National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo, a former Special Counsel for the Communications Workers of America union and now the NLRB’s top prosecutor, issued a memo (Memorandum 22-4) to its District Offices last week intended to make it illegal for employers to hold meetings or even meet one-on-one with their employees to discuss union versus union-free in their own workplaces.

Think about that. An employer does not have the right to call together employees, while being paid, to hear the employer’s position on the status of their workplace and what being unionized means for everyone in that workplace.

Keep in mind, if a union is trying to organize an employer, they are out there contacting employees to talk to them anywhere they can. During some union campaigns organizers come to employees’ homes along with fellow employees to “have a talk” about unionization. In some cases, requests to talk have reportedly been more in the realm of harassment of the worker, where some have reported meeting with the organizers just to stop the calls coming it to them.

And when the organizers’ get a private audience with employees, they are free to say pretty much whatever they want about what they see as the importance and value of joining the union.

So how does Ms. Abruzzo see meetings called by the employer to state their side of the issue of unionizing? In the labor-world, unions refer to these meetings as “captive meetings”. Whereby the employee is there because attendance was based upon “an unlawful threat that employees will be disciplined or suffer reprisals if they exercise their protected right not to listen to such speech.”

But doesn’t the law also protect the employer’s right to free speech? It does. And it has done so for over 75 years pursuant to the 1947 amendments to the National Labor Relations Act (NLRA) and its own case decision (Babcock & Wilcox Co. (1948) – but not under the current NLRB regime.

Whenever a new President is elected, they can replace positions within the NLRB with persons favorable to their interpretation the NLRA. Its President Biden’s turn, and he is very, very pro-labor. And his pro-labor appointees plan to twist labor law to where employers have no voice and no control over whether their workers understand what being in a union means or not.

With the General Counsel Memorandum, the government seeks to prohibit employers’ speech rights in their own places of business. Employers are immediately [today] put in a position where they must decide whether to say anything to employees about unions. This immediate threat is against a decades old right by law and guaranteed by our U.S. Constitution. The right to talk feely with one’s employees cannot be abridged by a government agency’s view that the meeting in and of itself is illegal regardless of what the employer says and how they say it. This interpretation of the law puts employers in a position of having to face an NLRB unfair labor practice charge that the employer will have to prove is false. By this pro-labor government agency’s hand, holding a meeting to discuss an employer concern, on paid time mind you, is per se, illegal.  

What employer wants to be the test case and suffer through NLRB prosecution and most likely the media coverage espousing the employer as a heartless robber baron? Is the cost and distraction of defending against the charge through an unfriendly NLRB hearing and to then have the NLRB find them guilty and hold them up as a “union busting corporation” worth it? This will be followed by an appeal to the federal court months if not years down the road to finally reach a decision that would inevitably state employers speaking to one’s own employees at their place of business while on paid time is legal. The result is inevitable because the federal courts look to the law and precedent as opposed to the bias in a pro-labor NLRB as pretty costly to get back one’s rights like that.

Proponents of this radical change in labor law do not see just banning employer meetings as sufficient. The change in the current law must include punishment of the employer for holding such a meeting. One punishment that the NLRB wants to use is forcing immediate recognition of a union with an order to bargain. This would occur without an election and despite there being no proof that the workers even want a union.

The NLRB can do this by resurrecting a previously dormant doctrine of labor law is called the Joy Silk doctrine. The Joy Silk doctrine arises from an NLRB decision giving it the authority to force collective bargaining on employers they determine violated employee rights to organize. As clear evidence the NLRB is moving quickly to re-adopt of the Joy Silk doctrine, it filed a brief with the NLRB Monday 4/11/22 by way of a case filed in the NLRB’s Arizona office. (Cemex Materials Pacific LLC and IBT).

So as a possible option; what if the employer makes attendance at any meetings voluntary? The employee can choose not to listen to the employer if they so decide. That too will not do according to some on the pro-labor side. They state, “Just because a meeting is voluntary, the poor worker may not feel free to decline. The worker could believe the employer would in some fashion retaliate against the employee that chose not to attend.”

Further proponents of the “absolutely no meetings by employers camp” state that just being voluntary is not enough. It must also be unpaid. Because if it is paid this is in fact a violation of the NLRA and its ban on offering benefits (pay for attending the meeting) to induce workers against unionization through their pay to attend the meetings. That particular issue is reportedly already a case pending in the pro-labor NLRB.  And what about the fact that if the worker agrees to attend it would be considered “hours worked” under the Fair Labor Standards Act (FLSA)? The FLSA as enforced by the Department of Labor’s Wage and Hour Division requires an employer to pay employees for their time at work, and a meeting during the workday would certainly appear to be hours worked – kind of a catch-22.

The above scenario forces an employer into a position to hold a voluntary meeting outside of working hours, so employees are not in any way deemed to have been coerced.

Another approach pro-labor advocates suggest can level the playing field around employee meetings is to give union organizers time to rebut messaging or by making the employer cover organizing costs. Do these people hear what they are saying?  Organizers that have been making their case to workers for weeks or months beforehand and must now be given the opportunity to address the same workers during the employer’s time to argue the value of a union-free workplace. Oh, and by the way, the employer also must pay for the costs expended by the union for doing that.

Employers must be prepared to fight the NLRB’s free speech restrictions guaranteed by the U.S. Constitution and also in the very Act that the NLRB says it is enforcing. The NLRA guarantees the right of employers to express their views about unions absent “threat of reprisal or force or promise of benefit.” Section 8(c) of the National Labor Relations Act. Section 8 ( c) of the act states:

“The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act [subchapter], if such expression contains no threat of reprisal or force or promise of benefit.”

The very agency responsible for enforcing this part of the law is fighting to remove the right this section provides, and the U.S. Constitution guarantees to both parties: employer and worker.

The above is not law yet, but the NLRB is looking for a test case. Union-free employers are advised to understand their rights under the NLRA and to take proactive action before union organizing occurs by educating employees on the risks of union representation and training managers and supervisors how to avoid actions that give organizers a foothold in your workforce. Supervisors must understand: 1) the importance of continuous and positive employee relations; 2) know and watch out for the danger signs about potential union organizing; and 3) know what can and cannot be said year-round about union representation.

In today’s pro union, anti-employer environment employers need to make employees feel confident they are listened to by the employer, that they are treated fairly, and understand why pay and benefits are set where they are. If employers remove those organizing issues that are the “oxygen” organizers feed on, the employer can avoid (hopefully) ever having to argue to be union-free with their own workers. Otherwise, you get an unwelcome business partner that does not easily go away.

ASE provides training to supervisors and managers on most every leadership competency. View our course catalog here.

 

Sources: Law 360  NLRB Top Cop Says 'Captive Audience' Meetings Are Illegal · (4/7/2022) and3 Takeaways As NLRB GC Sets Sights On Anti-Union Meetings (4/7/2022); Littler NLRB General Counsel Abruzzo Seeks to Limit Long-Standing Employer Free Speech Right (4/7/2022)

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