The National Labor Relations Board recently announced two decisions that break with longstanding precedent and greatly restrict an employer’s ability to communicate its opinion on unions to its employees.
NLRB Tightens Rules on Employer Statements About Unionization
In one decision, the Board overruled 39 years of precedent that deemed employer statements about the impact of unionization on employer-employee relations to be categorically lawful under Section 8 of the National Labor Relations Act (NLRA). As long as an employer was just sharing its opinion and not threatening employees, it was on safe ground. The Board’s new approach will be to analyze employer statements on a case-by-case basis under a stricter test to determine if they violate the NLRA because they are threatening or coercive. To be lawful, employer predictions about the negative impacts of unionization must be “carefully phrased on the basis of objective fact” to convey the employer’s belief that unionization will result in “demonstrably probable” consequences beyond its control. If employer statements about the consequences of unionizing are not grounded in objective fact, they may be found to be unreasonable predictions that amount to a threat of retaliation in violation of Section 8 of the NLRA (Siren Retail Corp. d/b/a Starbucks, NLRB, Nov 2024).
NLRB Overturns 76-Year Rule to Ban Mandatory Anti-Union Meetings
In a second significant decision overruling longstanding precedent (76 years!), the Board ruled that it is unlawful for employers to require employees to attend “captive audience” meetings on union-related topics. In this case, upon learning of organizing efforts, an employer held a series of mandatory meetings urging employees to reject union representation. The Board ruled that requiring attendance at such meetings interferes with an employee’s exercise of their NLRA Section 7 right to band together (or not) on issues related to wages, hours, or working conditions. The Board said that the employer’s ability to compel attendance under the “pain of discipline or discharge” lent a coercive character to the message about unionization. The Board was also concerned that captive audience meetings provide an opportunity for the employer to observe and surveil employees in their exercise of Section 7 rights. The Board made clear that an employer-held meeting to express views on unionization (subject to the new standard adopted in Siren Retail described above) would be lawful if: (1) employees are given reasonable advance notice of the subject of the meeting; (2) attendance is purely voluntary; and (3) no attendance records are kept (Amazon.com Services, LLC, Nov. 2024).
Tips: We anticipate that these decisions will eventually be overturned, either by these employers successfully appealing through the federal courts, or by future employers taking their case to a newly constituted Board after the Board flips to majority-Republican status sometime in 2025 or 2026. In the meantime, though, management should be careful when speaking about the impact of unionization on the employer-employee relationship. You should plan on either following the rules outlined above or preparing for potential legal fees if you have to defend your actions. Note that California, Oregon, and Washington already have their own captive audience laws, with their own special requirements that differ somewhat from the Board’s new position. As reported elsewhere in today’s newsletter, California’s SB 399 (the California Worker Freedom from Employer Intimidation Act) takes effect on January 1, 2025. Oregon has had a similar captive audience law on the books since 2010. The Oregon Bureau of Labor and Industries (BOLI) recently created a workplace poster that outlines these employee rights, as we reported here. In 2024, Washington passed the Employee Free Choice Act, which prohibits an employer from issuing discipline to an employee who declines to attend a meeting in which the employer expresses its views on religious or political (including union organizing) matters. Members: Please contact your Vigilant Law Group employment attorney if you have specific questions about what management can and cannot say or do when it comes to potential unionization of the workforce.
