NLRB Considers Limiting Employer Speech Options as Union Elections Surge
Author: Robert S. Teachout, XpertHR Legal Editor
April 12, 2022
Mandatory meetings during a unionizing campaign, in which employers explain why they think employees should not join a union, are at odds with federal labor law and should be declared unlawful, according to a memo from National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo.
Abruzzo explained that the NLRB has long recognized that the National Labor Relations Act (NLRA) protects the right of employees to listen to - or refrain from listening to - employer speech about employee rights to act collectively. However, Abruzzo stated, the NLRB concluded incorrectly in Babcock & Wilcox (1948) that compelling employees to attend meetings in which the employer makes speeches urging them to reject union representation does not violate the NLRB. As a result, employers commonly use express or implicit threats to force employees into "captive audience meetings" concerning unionization or other activity protected by law.
"Forcing employees to listen to such employer speech under threat of discipline - directly leveraging the employees' dependence on their jobs - plainly chills employees' protected right to refrain from listening to this speech," Abruzzo said. She stated that she will urge the Board to reconsider the precedent and find mandatory meetings unlawful.
The General Counsel (GC) is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases. By selecting cases to process, the GC helps shape the direction of NLRB rules. Abruzzo was appointed by President Biden in 2021, as were two of the three current Democratic board members who form the majority and are likely to support Abruzzo's call for a rule change.
The memo was issued against a backdrop of increased union organizing activity nationwide. The day before, the NLRB issued a report showing that petitions for union elections have increased by 57% to 1,174 in the first six months of fiscal 2022, compared to 748 election petitions in the first half of fiscal 2021. In addition, unfair labor practice charges have increased 14% during the same period, from 7,255 to 8,254.
"Right now, there is a surge in labor activity nationwide, with workers organizing and filing petitions for more union elections than they have in the last ten years," Abruzzo said.
That unionizing activity is exemplified by the recent union win in organizing an Amazon warehouse and the multiple victories at Starbucks coffee shops, where unions have won nine out of 10 organizing campaigns, including one in Starbucks' home city of Seattle.