Currently pending before the National Labor Relations Board (NLRB) on appeal is Garten Trucking, 10-CA-279843 et al. (2021), a case that has the potential to significantly impact the rights of employers and employees in unionization campaigns. The case involves a number of key issues, including the lawfulness of captive audience meetings, employer policies that potentially limit employee communications in union campaigns, and the standard for establishing a claim of retaliation.

The Administrative Law Judge (ALJ) agreed with the union on most of these issues, except for the unlawfulness of captive audience meetings and the retaliatory dismissal of the lead organizing employee. The NLRB is now reviewing the decision as a possible vehicle to tackle many of the major policy items that its general counsel, Jennifer Abruzzo, has been targeting since assuming the role and which can be found in her prior memo to the NLRB's Regional Offices on Mandatory Submissions to Advice.

These sweeping changes include: 

• Limiting the use of captive audience meetings altogether
• Expanding employee rights to use employer communications for organizing purposes, reinstating the previous Purple Communications standard
• Overruling the Wynn Las Vegas decision, which would allow for employee conversations concerning unionization and other forms of solicitation while on the clock
• Softening the current standards for establishing and proving a claim of retaliation

If the NLRB adopts all of these positions, it would represent a major shift in the balance of power between employers and unions. It would make it more difficult for employers to campaign against unionization and would give employees significantly more latitude to engage in organizing activities.

Captive Audience Meetings

Captive audience meetings are mandatory meetings called by employers in which they express their views on unionization during a campaign. These meetings have long been recognized as permissible under the National Labor Relations Act (NLRA), dating back to a 1948 decision, Babcock and Wilcox.

However, Abruzzo has long argued that captive audience meetings contain an inherent threat of reprisal, discipline, and animus toward union campaigning, which chill employees in their efforts to organize and support a union. The general counsel has asked the NLRB to overrule Babcock and Wilcox and hold that captive audience meetings are unlawful. If it does, this would be a major victory for unions and would make it much more difficult for employers to campaign against unionization.

Employee Communications

Concerning employee communications, Abruzzo is seeking to reinstate the decision from Purple Communications, which allowed employees to utilize employer communications systems such as email for unionizing purposes, and expand its protections to cover all form of employer communications platforms.

Likewise, Abruzzo would like to return to pre-Wynn Las Vegas days when only solicitation for signing union cards was conduct that might be prohibited during working time. With such a change, employee conversations concerning unionization and other forms of solicitation on the clock that do not otherwise disturb an employer’s operations would then be protected. Again, this is another momentous shift back that provides incredible leeway for employees to actively campaign for a union during working time.

Retaliation

Abruzzo has also asked the NLRB to revise the current standards for establishing a claim of retaliation, making it easier for employees to prove that they were retaliated against for engaging in protected activities under the NLRA.

Specifically, the general counsel wants the NLRB to allow employees to support their claim by presenting evidence of a generalized animus toward unions in lieu of evidence of a causal connection linking the employee's protected activity and adverse employment actions. Abruzzo also wants the NLRB to roll back the standard established in Electrolux Home Products, which held that employers are not necessarily liable for retaliation under the NLRA just because the employee has established that the reason given for the adverse action was actually pretextual.

If the NLRB agrees on these issues, it would be much easier for employees to win retaliation claims, and employers would be more likely to be held liable for even minor infractions of the NLRA.

Conclusion

Employers should not only keep an eye on the Garten Trucking case, but should buckle up for another wild ride. If the NLRB ends up agreeing on all of these items, this will fundamentally change how unions and employees will be allowed to organize in the workplace, imperiling decades-old precedent and ushering in a completely new set of liberal rules that employers and their HR professionals must keep top of mind. Employers will want to review their handbooks and policies and will need to be mindful of the strategies they employ during unionization campaigns given this convoy of new NLRB protections likely on the way for employees.