“Union Organizing Development”
It is hard to miss the news these days about increased union organizing, with Starbucks and Amazon being the two largest employers targeted by unions recently. Add to that the news regarding highly publicized strikes at the big three automakers and among healthcare workers and it is clear that there is a new day for unionization.
In the past, before new developments at the National Labor Relations Board that have favored unions, employers had specific tools that they used to discourage employees from signing union cards and joining unions. One of those tools was the “captive audience” meeting. At those meetings, which employers required employees to attend at the first sign of a union organizing drive, employers would talk to employees about the disadvantages of joining a union. Part of the messaging included the idea that employees did not need a third party to represent them and that the added layer of a union only added to the cost of doing business – using resources that could otherwise go to employees.
As we have noted previously, employers must follow the “TIPS” rules when dealing with union organizing drives. TIPS stands for threats, intimidation, promises and surveillance. Under these rules, an employer cannot makes threats to employees about what will happen if they join a union or, conversely, make promises of higher pay or increased benefits if employees reject the union. Additionally, employers cannot conduct surveillance of union supporters and cannot intimidate employees in an effort to dissuade them from joining a union. As part of an effort to discourage employees from unionizing, employers can use facts, opinions, and examples to show why the employer does not feel a union is right for employees. These facts, opinions, and examples are generally shared during “captive audience” meetings, which employers require employees to attend.
Five states have passed laws that would restrict an employer’s ability to hold these captive audience meetings. New York state recently passed a law that prohibits an employer from requiring employees to attend meetings or listen to communications “the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.” The law includes the right to join a union or to engage in collective activity in the definition of political matters. See, New York Labor Law, Chapter 31, Section 201-d (https://www.nysenate.gov/legislation/laws/LAB/201-D). By passing this law, New York has joined Connecticut, Maine, Minnesota, and Oregon in prohibiting employers from holding these captive audience meetings.
This trend in state legislation on this issue echoes recent guidance from the General Counsel of the National Labor Relations Board. On April 7, 2022, the Office of General Counsel issued Memorandum GC 22-04, which took the position that, contrary to past decisions by the NLRB, these mandatory meetings are inherently unlawful and a violation of the Act. The General Counsel stated that “those meetings inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech,” which is contrary to the protections of the Act. See, https://apps.nlrb.gov/link/document.aspx/09031d458372316b.
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