Labor Board Counsel Attempting to Institute Modified Card Check Rule and Do Away with Anti-union Employer Meetings

The current Administration, led by President Biden's promise to be the most pro-union Administration in history, continues in its efforts to change the rules so that unions become more widespread.  The President's appointed National Labor Relations Board (NLRB) General Counsel, Jennifer Abruzzo, plans to change the rules of union organizing not by law or regulation, but by interpretation.

First, she is seeking to outlaw mandatory anti-union meetings conducted by employers.  These meetings are sometimes called "captive audience" meetings because employers can require employees to attend such meetings.  She is now claiming that employees have the right to listen to, or refrain from listening to, an employer's speech concerning their rights to act collectively to improve their workplace.  She contends that forcing employees to attend captive audience meetings discourages employees from exercising their right to refrain from listening to the speech and is therefore in violation of the Labor Act.  She takes this position in spite of the fact that the First Amendment gives employers free speech rights, and it is even written into the Labor Act which states that employer expression "of any views, argument or opinion, or the dissemination thereof . . . shall not constitute or be evidence of an unfair labor practice."  Since 1948 in the Babcock & Wilcox case, the NLRB has consistently upheld a company's right to require employees on company time to attend such meetings.

In taking this position, Abruzzo is going where no NLRB General Counsel in modern times has gone before.  Abruzzo explains that years ago the NLRB incorrectly concluded that an employer does not violate the Act by compelling its employees to attend meetings in which it makes speeches urging them to reject union representation.  She states: "I believe that the NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor law principles. . .   Because of this, I plan to urge the Board to reconsider such precedent and find mandatory meetings of this sort unlawful."

The second dramatic move made by Abruzzo in April, calls for a change in Board case law to allow unions the ability to win recognition from employers without an election.  In a brief filed in a pending NLRB case, she calls for a decades-old legal standard allowing a union to be recognized if a majority of workers sign cards of support, established in the 1949 ruling in Joy Silk Mills.  That decision was later overturned, but she wants to reinstate the concept.  The concept would be under Abruzzo's approach that any employer that doesn't have clear evidence against the union's majority support in the workplace could be ordered to bargain with the union, even before any type of an election.  Abruzzo argues that the law doesn't necessarily require the Board to hold an election, given the "substantial deference" the Board has in shaping national labor policy.  The change would require employers to show "good faith doubt" when challenging a union's majority status.  Abruzzo claims the current Board election process deters private-sector unions, which now represent just 6% of the workforce.  

These changes demonstrate the aggressive pro-union mandate being carried out by the federal government.  The federal government itself as an employer issued guidance during April outlining what federal agencies could do as an employer to improve union organizing of federal employees.  The guidelines instruct agencies on "how to encourage unions' access and ability to communicate with federal employees;" quickly process workers' requests to have union dues deducted from their paychecks; and train federal managers and supervisors about how to remain neutral when workers are organizing a union.  The new guidance comes from a White House labor task force which was formed to explore ways to expand workers' collective bargaining rights in both the public and private sectors.  

Editor's Note - These steps by the NLRB General Counsel are probably the strongest steps attempted yet by the Administration to promote unions.  Note that the steps are not based on the passage of any law or regulation, or any vote by Congress, but instead are based on the power of the Board to change national labor policy by itself.  Of course, the full Board will have to approve this change in policy, and the current developments are only the position being taken by the General Counsel to urge the Board to do so.  

Traditionally, employer-conducted employee meetings have been probably the employers' most effective tool to explain the facts and issues to employees, the significance of union authorization cards, the employers' position on having a union, and the like.  Such meetings are really the employers' main advantage in union organizing campaigns.  The unions have numerous advantages in organizing campaigns, including the legal ability to promise employees virtually anything.  Employers, on the other hand, cannot make any "promise of benefit" or even suggesting the same to the employees who are voting, as such employer statements are deemed to be coercive and thus violative of the Labor Act.  The Board allows unions to make such promises because unions have no ability to force the employer to change anything.  

Regarding the secret ballot issue, unions have long fought to come up with ways to gain or force union recognition without giving the employees a right to vote by secret ballot.  There was the Card-Check law many years ago, and a modified version of it now appears in the PRO Act, a proposal that has already passed the House of Representatives, and one co-sponsored by 47 Democrat Senators.

The current effort is to gain by statutory interpretation of the existing law, which could not be gained through Congress or through a formal Board regulation.  It is not only anti-democratic in terms of employees' right to vote, but anti-democratic in the sense that it does not represent any vote by elected representatives.  It is another way to do away with the right to vote, this time by regulatory fiat. 

This is part of our May 2022 Newsletter.

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