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NLRB’s General Counsel Continues Her Reimagination of Longstanding Board Precedents Governing Employers’ Rights During Union Organizing Campaigns
Thursday, June 2, 2022

In her recently-filed brief to the National Labor Relations Board (NLRB or Board) in Cemex Construction, 28-CA-230115, NLRB General Counsel, Jennifer Abruzzo, continues her campaign to significantly curtail longstanding employer rights under the National Labor Relations Act (NLRA), this time in response to union organizing campaigns, with the apparent goal of creating more collective bargaining relationships between unions and employers.

Although the statistics for the most recent 10-year period from 2012-2021 reveal that unions have won 66 percent (9,835 of 14,171) of the secret ballot elections conducted by the Board, in her Cemex brief, Ms. Abruzzo argues that seismic changes to well-established tenets of Board law concerning union organizing still must be made, including: (1) the establishment of an agency preference for voluntary “card check” recognition over confidential, anonymous secret ballot elections conducted by the NLRB, through a revival of the antiquated Joy Silk doctrine first announced by the Board in 1949, and then reversed 25 years later by the US Supreme Court in Linden Lumber,419 US 301 (1974); (2) abandoning 70-plus years of Board and US Supreme Court precedent permitting employers to exercise their Section 8(c) rights by requiring employees to attend “captive audience” meetings on company time in which the employer may freely express its views on union organizing to employees provided there are no threats of reprisal or promises of benefits; and (3) after nearly 40 years, eliminating an employer’s right to truthfully inform employees during organizing campaigns that direct access to management will be limited if they vote for union representation.

In Cemex, an NLRB Administrative Law Judge (ALJ) found that the employer committed numerous unfair labor practices during a union organizing campaign that preceded an election in which the union lost (179-166). Despite these findings, the ALJ declined to recommend the issuance of a Gissel bargaining order requiring the employer to recognize and bargain with the union, prompting the General Counsel to file unprecedented “exceptions” to the ALJ’s recommended decision in which she did not seek reversal of the ALJ’s findings, but rather attempts to use them “as an appropriate vehicle for the Board to revisit,” and potentially sanction, her reimagination of the three foundational principles of union organizing discussed below.

Potential Revival of the Antiquated Joy Silk Doctrine

Apparently unconvinced by the above-referenced 66 percent win rate for unions in secret ballot elections over the past 10 years, in her Cemex brief, the General Counsel exhorts the Board to ignore the well-established holding of the US Supreme Court in Linden Lumber, 419 US 301 (1974)- that secret ballot elections should be the “preferred method for determining whether a union has majority support.” Instead, the General Counsel urges the Board to reinstate, after 50 years, the long-ago discredited doctrine set forth in Joy Silk Mills, 85 NLRB 1263 (1949), requiring an employer to recognize and bargain with a union presenting union authorization cards signed by a majority of the employees unless the employer established a “good-faith doubt” related to the authenticity of the authorization cards. Of course, the central and well-documented problem with preferring a “card-check” process to the results of anonymous, secret ballot elections conducted by trained NLRB agents in order to demonstrate the employees’ majority support for a union seeking representation rights under Section 9(a), is their inherent unreliability—as those signatures often result from repeated pressure by union organizers personally exerted upon individual employees at or away from work, in parking lots, gyms, bars, visits to their private homes and/or, in some instances, outright forgery.

As a result, when the ill-conceived Joy Silk doctrine was finally subjected to Supreme Court scrutiny 25 years later in Linden Lumber, the Court rejected the “good faith doubt” test and held that it was not an unfair labor practice for an employer to deny a union’s request for voluntary recognition based upon a “card-check.” Rather, the Court wisely shifted the burden to the union to submit its signed cards to the Board for investigation and, upon determination of at least a valid 30 percent “showing of interest,” trained Board agents would conduct a secret ballot election in which employees may go into a booth, close the curtains, and cast a free and uncoerced ballot for or against the petitioning union. As Justice Douglas candidly observed in Linden Lumber: “[i]n terms of getting on with the problems of inaugurating regimes of industrial peace, the policy of encouraging secret elections under the Act is favored. 419 US at 307 (emphasis added).

Although it is difficult to imagine the current Board choosing to ignore the nearly 50-year-old, well-reasoned Supreme Court precedent on this important issue of fundamental fairness in carrying out its statutory obligations under Section 9 of the NLRA, the General Counsel vigorously argues to the contrary in Cemex, and we look forward to the Board’s ultimate ruling on its merits.

Potential Preclusion of “Captive Audience” Meetings

Additionally, in her Cemex brief, the General Counsel fervently argues for the reversal of an even longer-standing precedent approving an employer’s free speech right to require employees to attend “captive audience” meetings on working time to freely express its position on potential unionization as long as it does not make any “threats” or “promises of benefits” in the process. See Babcock & Wilcox, 77 NLRB 577 (1948); Chamber of Commerce v. Brown, 554 US 60 (2008); see also NLRB v. Virginia Power, 314 US 469 (1941). In the General Counsel’s view, a return by the Board to the pre-Section 8(c) rule in Clark Brothers, 77 NLRB 577(1946) that an employer violates Section 8(a)(1) by, using her words, “convening” or “cornering” employees in group or individual meetings where unionization (or any form of Section 7 activity) is discussed, is necessary because it “plainly chills employees’ protected right to refrain from listening to this speech.” Further, she urges the Board to adopt certain “prophylactic safeguards” that employers should, in her view, provide to employees concerning these meetings in order to “neutralize the implicit threat of reprisal” in them, including that: (i) attendance at and/or listening during them is not “mandatory”; (ii) they are free to leave at any time; and (iii) there will be no benefits to them by attending nor any reprisals should they choose not to attend.

Although we are certain that General Counsel Abruzzo sincerely believes that turning back the clock 70-plus years to a pre-Taft-Hartley, pre-Section 8(c) world outlawing “captive audience” meetings is heartfelt, as discussed above, she faces significant, powerful, and well-reasoned statutory and precedential obstacles in convincing even the current Board to reverse course and adopt her novel position.   

Censoring An Employer’s Right To Inform Employees During An Organizing Campaign That They Will Have Limited Access To Management If The Union Becomes Their Certified Representative

Finally, in her quest to re-engineer the well-established landscape for union organizing under the NLRA, General Counsel Abruzzo urges the Board in her Cemex brief to reverse its nearly 40-year-old  rule announced in Tri-CastInc., 274 NLRB 377 (1985), permitting employers to inform employees during the campaign that their ability to have direct access to management will change if the union becomes their representative. In Tri-Cast, the employer had distributed a letter to employees stating, among other things, that:

“[w]e have been able to work on an informal and person-to-person basis. If the union comes in, this will change. We will have to run things by the book, with a stranger, and we will not be able to handle personal requests as we have been doing.”

Although the Regional Director in Tri-Cast found these statements were “misrepresentations” that “threatened to withdraw rights preserved by Section 9(a),” the Board flatly rejected this contention—finding that “[t]here is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employees and the employer will not be as before . . . where a collective bargaining agreement is negotiated.” In further support of its holding, the Board cited language from the Ninth Circuit’s opinion in Sacramento Clinical Laboratory that: “[i]t is a ‘fact of industrial life’ that when a union represents employees, they will deal with the employer indirectly, through a shop steward.” Id., 623 F 2d 110, 112 (emphasis added).

In her Cemex brief, the General Counsel contends that the nearly four-decade rule announced in Tri-Cast should be reversed because statements that employees will be deprived of direct access to company management if the union becomes their representative are “unlawful threats of the loss of existing benefits” and, as such, “misrepresent” employees’ rights under Section 9(a). However, her reasoning is no more persuasive than that of the Regional Director, completely rejected by the Board in Tri-Cast, because the entire purpose of a collective bargaining agreement is to grant exclusive representation rights to the union as set forth in the plain language of Section 9(a).

Accordingly, on this issue as well, it will be interesting, to say the least, to see if the current Board wants to reverse this longstanding tenet of permissible comments employers may make to employees during union campaigns.

How Employers Should Prepare Themselves

Although General Counsel Abruzzo is independent of the Board, she does have responsibility for the general supervision of the NLRB’s 50 Regional, Sub-Regional, and Resident Offices around the country and, of course, over the investigation and prosecution of unfair labor practice charges she may deem to be “complaint-worthy.” In these circumstances, and despite their novelty and thinly-disguised purpose, employers should familiarize themselves with the major departures she now seeks as they may lead to the increased filing of unfair labor practice charges based upon her controversial arguments.

In particular, until the General Counsel’s positions on these subjects are addressed and settled by the Board, employers should: (1) anticipate increased efforts by unions to directly engage with their employees in many different locations at or away from the worksite to potentially pressure them into signing authorization cards; (2) train managers and supervisors on how to appropriately refuse to review signed cards that union representatives may attempt to present in support of a demand for voluntary recognition based upon “card-check” in order to protect and preserve the employees’ statutorily-protected right under Section 9(a) to a secret ballot election in which they may confidentially express their true sentiments regarding union representation anonymously without feeling threatened or coerced; (3) consider General Counsel Abruzzo’s disdain for “captive audience” meetings, whether “convened” or “cornered,” and assess with counsel the risks associated with, at least temporarily, informing employees during organizing campaigns that their attendance at these meetings is “voluntary;” and (4) finally, provide appropriate additional training to managers and supervisors regarding the “dos and don’ts” of informing employees of the company’s position on “limited access” to management should the union win and become their “exclusive representative” (or on any other campaign issue), considering, again with counsel, the risks associated with the General Counsel’s strained objection to the nearly 40-year-old rule in Tri-Cast discussed above. 

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