During his campaign, President Biden repeatedly pledged that, if elected, he will do whatever he can to increase union membership and “will be the strongest labor president you have ever had.” This prounion bias is playing out in the National Labor Relations Board (“Board”). After being sworn into office, President Biden packed the Board with pro-union activists and appointed Jennifer Abruzzo as General Counsel. Immediately prior to becoming General Counsel, Abruzzo had been Special Counsel for Strategic Initiatives at the Communications Workers of America.
The General Counsel is the chief enforcer of the Board and her view of what is or is not a violation of the law dictates how the law is to be administered by the regional offices. The General Counsel also plays a major role in deciding which cases get to the Board for consideration. To a great degree, the General Counsel shapes the direction and content of Board law. With the stated goal of the President in her sails, Abruzzo already has directed the Regions to become more aggressive in responding to claims of unlawful employer conduct, especially during union organizing campaigns. In addition, Abruzzo has directed the regional offices to find cases that can be used as vehicles for changing Board law. In this connection, Abruzzo has stated that she intends to make drastic changes with regard to what employers can do to combat unionization. Big labor has responded to this era of pro-union government regulation with an increase in union representation petitions by a whopping 58 percent in the first three quarters of this fiscal year.
From her many memoranda, briefs, directives and letters of advice, it is obvious that Abruzzo has taken as true the excuse of big labor for their membership shrinking to an abysmal six percent of the private workforce as true. The excuse can be paraphrased as follows: Unions cannot get new members because employers coerce and frighten employees into rejecting union representation and the Board fails to enforce the law protecting employees from this abuse and violations of their rights to organize. If the Board would come down hard on the violators and get rid of employer-friendly interpretations of the National Labor Relations Act (the “Act”), union membership would soar.
Responding to these complaints, Abruzzo has launched a campaign to make it nearly impossible for employers to combat union organizing. Impossible, that is, if employers utilize the same strategies as they have used for decades. This close look at what Abruzzo already has done and what she has on her to-do list is intended is to help employers deal with and, in some cases, neutralize union organizing in this era of Labor Board pro-union activism.
ORGANIZING BY CARD CHECK
In 1949, the Board decided Joy Silk Mills, creating a Board policy that defined an employer’s obligation when a union demands recognition based on authorization cards purportedly signed by a majority of the employer’s employees. That policy, dubbed the “Joy Silk doctrine,” provides that when a union presents an employer with authorization cards signed by a majority of its employees, the employer is required to recognize and deal with the union as the employees’ representative, unless the employer has a good faith doubt as to that majority support or the appropriateness of the proposed bargaining unit. This good faith doubt must be expressed at the time the cards are presented and maintained without intervening unfair labor practices until the conduct of a secret ballot election to determine whether the union has the support of a majority of the targeted employees.Pushed to its extreme, the Joy Silk doctrine permits union organization by ambush. That is, a union can obtain cards by making promises and misrepresentation about what unions can do/accomplish, by concealing the cost and risks of unionization and by engaging in coercion, all without the employer’s knowledge and opportunity to respond. Since an employer is prohibited from asking employees about what the union did or said to get authorization cards signed and, yet, must give the basis for its good faith doubt about the legitimacy of the cards at the time the cards are presented, the Joy Silk doctrine effectively prevents employers from requiring a union to prove its majority support through a Board supervised secret ballot election.
The Joy Silk doctrine was the law until 1969 when the Supreme Court held, in National Labor Relations Board v. Gissel Packing, that an employer has the right to have the question of union support decided by a secret ballot election, unless the employer has committed unfair labor practices so pervasive or outrageous that a fair election could not be conducted. The Board complied with the Court’s edict and adopted a policy that made representation elections the preferred method for determining the union’s majority status, overturning the Joy Silk doctrine. Five years later, the Supreme Court held, in Linden Lumber, that the Board’s policy of elections on demand was a reasonable and appropriate application of the law. Today, 53 years later, the right of an employer to have the issue of union support decided by a secret ballot election remains the Board’s policy.
Now, however, that policy is under attack by Abruzzo in a case currently pending before the Board, Cemex Construction Materials. In her brief filed in April of this year, Abruzzo argues that the Board has the authority, without court approval, to turn back the clock and make the Joy Silk doctrine once again its policy. With the Board’s majority being aggressively pro- union, it is reasonable to expect that it will agree with Abruzzo and make card checks the rule, not the exception. Since Cemex will be decided in the very near future, it is prudent for employers to develop a strategy to deal with organizing by card check now. The goal of the strategy, in the first instance, would be to enable the employer to force a secret ballot election. To achieve this goal, the strategy should have at least three components:
1. Employee policies, including wages and benefits, that are not only competitive in the market place but also create positive employee relations;
2. An educated workforce that will (i) resist the sales pitch of a union agent and pro-union coworkers, (ii) voluntarily inform the company when union activity is occurring, and (iii) report unlawful conduct by union organizers; and
3. Educated supervisors who (i) know how to create and maintain a positive workforce, (ii) know about unions, what they can and can’t do and how they go about getting cards signed, (iii) understand the protected rights of employees engaged in union activity, and (iv) know what to do if approached by a union agent demanding recognition based on authorization cards.
All of these components take full advantage of Section 8(c) of the National Labor Relations Act (the “Act”). Section 8(c) gives employers the right to express “any views, argument, or opinion” about unions and unionization “if such expression contains no threat of reprisal or force or promise of benefit.” The right given by Section 8(c) does not pertain only to when there is a union organizing drive; an employer may express its opinions at any time. When a healthy relationship between an employer and its employees is coupled with education about unions, and how unions go about organizing, at least some employees are likely to alert the employer to union activity, giving the employer time to refresh and supplement its educational program. It is also likely that, if employees become aware of coercion or other improper conduct by union agents in the process of getting cards signed, some will tell the employer, yielding facts that the employer will need to support a good faith doubt that the union obtained cards lawfully.
Supervisors and managers also need to be taught how to avoid recognitio by accident. Supervisors should be taught that, if approached with a demand for recognition, they should reply with “I do not have the authority to respond. You need to see _______________.” It goes without saying that the person or persons to whom the agent is referred must then be prepared to express a good faith doubt about the legitimacy of the cards and/or the appropriateness of the proposed bargaining unit. Cards are obtained unlawfully when the employee is subjected to threats or other forms of coercion. For example, it is common for a union agent to threaten an employee with withholding of representation unless the employee signs a card. A misrepresentation of what a union can produce for employees, however, would likely be an insufficient basis for rejecting cards. Unless a misstatement of fact is egregious and likely to cause fear in the employee, such as a plant shutdown or loss of a job, truth is relative.
As a general rule, any unit proposed by the union that is smaller than wall-to-wall should be challenged as inappropriate because it likely excludes employees with a community of interest. This is particularly important when the unit desired by a union is a micro-unit. The manager chosen to be the person with the authority to respond to a demand for recognition needs to know why a particular unit of employees is appropriate for bargaining and why other potential units are inappropriate.
Since the education of employees is normally conducted in group meetings and one-on-one conversations during work time, employers must take special care and know applicable law at the time such meetings and conversations are held to ensure that they are still compliant with Board law. Note that the lawfulness of such meetings is currently under attack by Abruzzo as inherently threatening. This is addressed in detail below.
NO CAPTIVE AUDIENCE MEETINGS OR CONVERSATIONS
The most effective tools an employer has to combat an active union organizing drive are group meetings and one-on-one conversations with employees. Because these group meetings are conducted during paid time, when the employer has the right to require an employee’s attendance, they have come to be called “Captive Audience Meetings.” Also lumped into that catch phrase are one-on-one meetings of a supervisor and an employee. When an employee is required to attend a meeting or is approached by a supervisor for the purpose of discussing unionization, the employee is a “captive.” Abruzzo’s former employer, the Communications Workers of America, has reported that “[t]he win rate for unions in certification campaigns was 73%, but that figure dropped to 47% when management held captive audience
Knowing its value, Abruzzo is seeking to take this tool away from employers. Abruzzo, again in Cemex, argues to the Board that Captive Audience speeches and conversations are per se violations of Section 8(a)(1) of the Act because they are inherently coercive. “As a matter of law,” wrote Abruzzo, “employers who speak to convened or cornered employees concerning their exercise of Section 7 rights unlawfully threaten reprisal should the employees exercise the right to refrain from listening.”
If the Board adopts Abruzzo’s position, employers will no longer be able to have captive audience meetings or one-on-one conversations with employees in response to union organizing. By reasonable extension, nor would employers be able to explain to new hires during onboarding why the Company is and wants to stay union-free.
The only exception to this rule, says Abruzzo, would be if the employer makes such meetings and conversations voluntary and ensures that employees are aware that attending the meeting or listening to a supervisor is voluntary and non-attendance or non-participation will not subject them to any form of reprisal. Abruzzo is silent as to any protection an employee may have against retaliation or threats by a pro-union employee or union agent if they go to such a meeting or listen to the supervisor. In not addressing or even acknowledging this possibility, Abruzzo reveals her bias. Abruzzo’s obvious motive is to put employers at a severe disadvantage in the face of union organizing.
There are some difficulties with Abruzzo’s argument, however. As noted above, Section 8(c) of the Act protects employer free speech about unions. Further, Section 8(b)(1) of the Act states that it is an unfair labor practice for a union to “restrain or coerce employees in the exercises of the rights guaranteed in Section 7.” Section 7 guarantees the right of employees to refrain from engaging in union activity as well as engage in such activity. Employees have a protected right to attend a meeting or have a discussion with a supervisor regarding unions and unionization and any coercion by a pro-union coworker or a union agent would interfere with that protected right and, should be per se unlawful. Arguably,
prohibiting captive audience meetings and conversations constrains an employer’s use of free speech and, unshackled, invites coercion by employee and union organizers.
In an interesting side-step around the Sections 8(b)(1) and 8(c) of the Act, Abruzzo argues that her rule relates to attendance at a meeting/conversation and not the substance of the meeting/conversation. Also, she argues, recognizing that employees have the right to refuse to be subjected to anti-union rhetoric promotes their right to engage in union activity, fulfilling the underlying policy of the Act and the United States, as stated in Section 1:
It is declared to be the policy of the United States . . . [to protect] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.
Abruzzo is blind to the reality that union agents and pro-union employees often coerce employees into signing cards and she may be successful in convincing a pro-union Labor Board to don the same blinders.
Abruzzo also argues in her brief that advising employees that they do not have to attend a meeting or have a conversation with a supervisor about unionization will not be a burden because the Board already has a method by which employers can “dispel implicit threats of reprisal.” In support, she points to a 1964 case, Johnnie’s Poultry Co. and a 1967 case, Struknesres. These cases resolved the dilemma faced by employers when they need to investigate an alleged unfair labor practice and must interview employees to get facts or wish to use the likeness of employees in promotional literature or videos. Using these cases, Abruzzo says it is easy to devise a communication about meetings and
conversations relating to unions that would be consistent with Board law:
First the employer must explain the purpose of the meeting. Second, the employer must assure employees:
a. That attendance is voluntary,
b. That if they attend, they will be free to leave at any time,
c. That nonattendance will not result in reprisals (including loss of pay
if the meeting occurs during their regularly scheduled working hours,and
d. That attendance will not result in rewards or benefits.
If and when faced with having to give employees this warning, both when the meeting is announced and again at the beginning of the meeting, many employers may choose not to have meetings and opt to have all communications about unions in writing, letting the employees decide whether to read them. While doing this may avoid an unfair labor practice charge, the employer will be giving up the advantage of direct contact and inter-action with the employees.
Using written communications only may be an over-reaction and a mistake. Experience from union organizing in Oregon, which has had a ban on captive audience meetings since 2009, is that most employees attend voluntary meetings. Consequently, at least some employees will hear the employer’s message and may use what they learn to rebut the union’s campaign rhetoric and even help them to launch their own grass-roots counter campaign. Even if an employer chooses to have voluntary meetings, there also should be a robust written campaign and
the material should be sent to an employee’s home where it may be read by someone dependent on the employee’s income. These “dependent” readers have a real stake in whether the employees choose to be unionized.
INCREASED USE OF INJUNCTIONS
Most of Abruzzo’s desired changes require action by the Board and cannot be implemented by fiat of the General Counsel. But where she can make changes unilaterally, she already has done so. One of these changes is the increased use of injunctions. Section 10(j) of the Act authorizes the Board, when the regional officer or attorney has reasonable cause to believe that an unfair labor practice has merit, to petition a federal district court to enjoin the conduct. The injunction would stay in place until the issue is finally adjudicated by the Board.
Except in particularly egregious cases, the practice of the Board had been to delay processing of a charge arising out of union organizing until after an election. If at that time it is concluded that the violation had a material effect on the election, the election is rerun. In the normal course, the delay in the Board’s processing of a charge will give an employer time to prepare and launch a well-constructed and vigorous campaign. Again adopting the position of big labor, Abruzzo argues that any employer unfair labor practice during union organizing would create an atmosphere of lasting fear among the employees, making a valid election impossible for the foreseeable future. Consequently, she has directed that a petition for an injunction should be filed as soon after the filing of an unfair labor practice charge during a union organizing drive
The negative effect of a petition for an injunction on the employer’s ability to combat the union drive is substantial. Preparing for and litigating a petition for an injunction demands the full attention of most employers - attention that should be given to combating the union activity. Further, the petition for an injunction, particularly if successful, will be a blow to the employer’s credibility and a jolt to supervisors who may become uncertain and tenuous, not wanting to be the cause for another charge. For the union, an injunction would be proof positive of its effectiveness. Consequently, the increased use of injunctions materially increases the risk of aggressive action by a union, as it will search out any possible reason to file a charge, hoping to get the Region to file a petition for injunction.
REMEDIES ON STEROIDS
Various remedies for violations of the Act in the context of union organizing have been fashioned by the Board on many separate occasions and Abruzzo has instructed Regions to be creative in finding ways to expand the range of possible remedies. In her Memorandum GC 21-6 addressed to the regional field offices, Abruzzo listed the possibilities which should be considered:
For unlawful discharges
a. Full back pay
b. Compensation for healthcare expenses incurred due to termination of health insurance
c. Credit card late fees
d. Loss of home due to foreclosure
e. Loss of car due to repossession
f. Consequential damages (lost expectations, emotional distress]
g. Front pay
For all unlawful activity, including discharges
a. Publication of a notice drafted by the Region containing the commitment of the employer to respect the rights of employees to unionize, and a confession by the employer of violation of the law. The notice must be published on all bulletin boards, and in newspapers and online communication outlets chosen by the Regional office. Publication can also include placement on the employer’s website and a mailed copy to all employees who had worked for the employer in the prior six months.
b. Reading of the notice by a principal of the employer to an assembly of all employees, supervisors and managers in the presence of a Board agent and agent of the union; or, reading of the notice before the assembly by a Board agent with the principal present. A video of the notice reading should be sent to all employees who could not attend the live reading.
c. Preapproved training of employees with regard to their rights under the Act.
d. Preapproved training of supervisors.
e. Union access to employee contact information, presence at and equal time to speak at any captive audience meetings and posting of union information on all bulletin boards
f. Instatement of a person of the union’s choice, if the discharged employee is unable to return to work.
g. Reimbursement to the union of all expenses for a re-run election if the first election is overturned due to the employer’s violation of the Act.
These remedies, or some version of them, also must be included by the Region in all settlement agreements. In addition, Abruzzo has made mandatory the inclusion of default language in all settlement agreements. Default language comes into play if the employer fails to perform any of its obligations in the settlement agreement. In such a case the employer would be deemed to have admitted all of the alleged violations. This admission would apply to all subsequent proceedings, including trials and appeals to the Board for review.
Beginning with the reversals of existing applications of the Act by President Obama’s pro-labor Board, Board law has had wider and more dramatic swings than at any other time in decades. When Trump became president and the composition of the Board turned pro-management, the Board reversed some of the most significant decisions of the Obama Board. Now, the pro-labor Biden Board is reversing what the Trump Board did and is swinging the pendulum even farther to the left than the Obama Board. During this period of fluctuation, employers have been uncertain about what to do when a union seeks to represent their employees. In time, the pendulum may swing toward the middle, but right now employers must be creative and resolute, but not foolish, if they wish to remain union-free.
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