By Mark Adams
Despite the winds of political change and a turnover in administrations on the horizon next year, that has not deterred the National Labor Relations Board from continuing to push out controversial decisions that reverse long-standing precedent.
Most recently, the Board has issued two decisions that undermine when and how employers can communicate with their employees during a union organizing drive.
Make no mistake, the cases are significant; particularly when employers are already under compressed timelines for responding to union organizing campaigns under the much-maligned “quickie election rules” that allow for an election in as little as two weeks from when a petition is filed with the National Labor Relations Board.
In the first case involving Amazon, the Board ruled that employers cannot conduct “Captive Audience” meetings as a means of ensuring that management can voice their stances when it comes to unions. In overruling the long-standing case precedent of Babcock & Wilcox that dates to 1948 (yes – precedent that had stood for over 75 years!), the Board stated that “the employer’s ability to require attendance at such meetings demonstrates the employer’s economic power over its employees and reasonably tends to inhibit them from acting freely in exercising their rights” (Amazon.com Services LLC).
The decision doesn’t prohibit management from having meetings with their employees altogether to communicate their positions, but attendance at those meetings now must be voluntary. Thus, for managers hoping to ensure that all employees at least get to hear management’s position, the Amazon decision greatly curtails that effort.
While the Amazon case focused on how managers can communicate with their workers, the second case targets what management can say; particularly when it comes to their philosophical viewpoints on the impact of unionization and the relationship between employees and management. Past precedent had generally allowed management to communicate their opinions when it came to their management philosophy and what they thought unionization might do to that philosophy. Statements such as “access to management would be limited if employees were to unionize” or “employees would have to use a union as a third party to speak on their behalf” had been presumptively viewed as ok based on the Tri-Cast decision. Yet, despite this long-standing case precedent – dating back to 1985 (almost 40 years), the Board decided to “cast” that aside and ruled that employers’ opinions or predictions on the impact of unionization “must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond [its] control.” If such a prediction is not grounded in objective fact or predicts negative consequences that would result from the employer’s own actions, it is “no longer a reasonable prediction based on available facts, but a threat of retaliation based on misrepresentation and coercion.” (Siren Retail Corp d/b/a Starbucks). Put another way, conveying the opinion alone – absent objective facts that support the opinion – will generally no longer be enough.
Thus, for employers who may be hard-pressed to make such a substantiated position, they may need to scale back their philosophical statements to their own views based on their past managerial philosophy and actions rather than conveying future assessments of what may change.
Taken together, the cases mean that employers need to tread very carefully when it comes to how they respond to an organizing drive. It underscores the need for HR and managers to be more proactive when it comes to sound employee relation practices so that they can convey a positive philosophical position that is tied (ultimately) to their past practices while also providing an atmosphere that will enable workers to want to attend and listen to what management has to say should an organizing drive take place.