New England Biz Law Update
In two recent decisions, the National Labor Relations Board has altered the legal landscape governing union elections, impacting how employers communicate with their employees during organizing campaigns.
These rulings overturn decades-old precedents and, as such, are likely to face legal challenges.
Captive audience meetings outlawed: One shift stems from the Amazon.com Services LLC case and outlaws mandatory “captive audience” meetings, a long-standing tool used by employers to present their views on unionization. The NLRB declared these mandatory gatherings inherently coercive, interfering with employees’ rights to freely consider unionization.
Now, employers can only conduct voluntary meetings and must explicitly inform employees of their right to abstain without penalty. Furthermore, employers must refrain from tracking attendance. This decision overturns a 76-year-old precedent set by the Babcock & Wilcox Co. case. Amazon has stated its intent to appeal, arguing the decision violates its First Amendment rights.
New standard for employer speech: In a separate case involving Starbucks, the NLRB ruled that the coffee giant illegally threatened workers by suggesting that unionization would result in the loss of a direct relationship between management and employees.
The decision establishes a new, stricter standard for evaluating employer statements during union campaigns. Predictions about the impact of unionization must be “carefully phrased,” based on objective facts, and pertain to consequences outside the employer’s control. Otherwise, they will be deemed coercive threats.
The ruling reverses a 1985 precedent set in Tri-Cast Inc. under which employers could tell employees that unionization would eliminate their ability to address workplace issues individually with management.
The new ruling is seen as significantly lowering the bar for proving anti-union intimidation. Starbucks plans to appeal, arguing the new standard was applied retroactively.
Implications and future challenges These NLRB decisions represent a shift in favor of unions, increasing the scrutiny applied to how employers communicate with employees during a unionization effort.
However, the rulings’ long-term impact remains uncertain. With the change in presidential administration, a shift in the NLRB’s composition and priorities is anticipated.
Nevertheless, employers should consider reviewing campaign materials and communication scripts in line with the new legal standards. Ensure employees understand that attendance is optional and avoid any materials that suggest employees will lose a direct relationship with management. Be prepared to train supervisors, as well, so they are not perceived as coercive in ad hoc employee conversations during unionization efforts.
Meanwhile, several states, including Connecticut, Maine, New York, Oregon, and Vermont already have laws against captive audience meetings. As always, employers need to stay aware of changing regulations and relevant state laws.
