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Could the NLRA Become a Pro-Union Manifesto? 5/9/2016
Yes, If 106 Professors Get Their Way
By: Ricardo Torres

Earlier this year, 106 professors and academics submitted a pro-union manifesto gag rule petition to the NLRB that could turn the NLRA into a completely pro-union document. Read on to find out just how dangerous such a move would be to employers First and Fifth Amendment rights. Please read this article's companion Confessions of a Union Organizer, which explores captive-audience meetings from the union's perspective.

A captive-audience meeting is one of the strongest weapons in an employer's arsenal in the fight against big labor. Basically, a captive-audience meeting is a mandatory (paid) meeting with employees prior to an election and may consist of one-on-one or small group sessions, or may include the entire bargaining unit. They are the best opportunities (post-petition) for an employer to establish a relationship with employees, explain why inviting a third party to run interference between employers and employees is bad for everyone (other than the union), and to find out why the employees may be interested in organizing. These meetings must take place no later than 24 hours before the scheduled election and may not include any coercive or threatening language or implications. Obviously the most effective method to prevent organization is to be proactive and establish and maintain employee engagement, but if you find yourself in an organizing campaign, holding a captive-audience meeting is the next best option.

On January 15, 2016, 106 law professors and other academics filed a rulemaking petition with the National Labor Relations Board (NLRB) proposing a new rule that would prohibit Captive-Audience Meetings ($) during union organizing campaigns unless the union is provided the same opportunity to hold meetings on company time and on the company's premises. While the Supreme Court has ruled that employers have every right to talk directly to their employees prior to organizing, many labor proponents believe that it is only "fair" if the employers also pay for unions to talk to their employees.

These "interested parties" are attacking the National Labor Relations Act's (NLRA) definition of conducting an election under laboratory conditions, which is the intended goal of the NLRA. As you read this article, remember that unions have the right to meet employees outside of work, for example at the union hall or at bars and restaurants (with no law preventing them from paying the bill). Unions also have the right to visit workers' homes where they can apply pressure to an entire family. Employers, however, are currently limited to meeting with and talking to employees at the workplace, while the employees are on the clock. The current language in the NLRA that provides employers the right to educate and communicate with their employees during a campaign is:

Section 8 (c) [Expression of views without threat of reprisal or force or promise of benefit] The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act [subchapter], if such expression contains no threat of reprisal or force or promise of benefit.

Sadly, these facts show that the true legal violations of "laboratory conditions" [mirror] are already skewed in the unions' favor; however, these professors believe that unions should have even more access to employees at your expense. Unions have the ability to say and do pretty much anything they want at their offsite meetings and already have an upper hand with getting home addresses where they can set husbands and wives against each other through the promises of more money and benefits. Changing this would be yet another travesty in the broken system that already leans heavily in the unions' favor following the "quickie elections" ruling of 2015.

The petitioners provide several "facts" to convince the Board to adopt the new rule...

The petitioners point out that during the first 12 years following the passage of the NLRA, captive audience meetings were unlawful (this was overturned in a 1941 Supreme Court decision due to the obvious infringement on employers' free speech rights. After the Court confirmed an employer's First Amendment right to educate employees and present the facts about union representation, the petitioners claim that the NLRB spent the next quarter century see-sawing between different legal standards on employer speech, union access to the employer's property, and the definition of laboratory standards (where workers do not feel threatened or coerced) under which a fair election can be conducted.

The petitioners reference an antiquated period following the 1951 Bonwit Teller decision [mirror] during which the NLRB allowed for a conditional equal time exception. In addition to misattributing the year of the NLRB'sBonwit Teller decision (1952), the petitioners also leave out several critical distinctions that the Board made in its decision, notably:

...That is not to say that an employer is proscribed from addressing his employees and urging that they reject a union unless he invites a union representative to come into his plant and make an appeal for support of the union. Nor does it mean that under any and all circumstances an employer is under an obligation to accede to a union's request that it be granted an opportunity to address the employees on the employer's premises. It is to say that an employer who chooses to use his premises to assemble his employees and speak against a union may not deny that union's reasonable request for the same opportunity to present its case, where the circumstances are such that only by granting such request will the employees have a reasonable opportunity to hear both sides.

What the particular circumstances are which give rise to the obligation to grant such request is a matter the Board must face on a case-to-case basis. We are satisfied that those circumstances were present in the case now before us... (Bonwit Teller, pg. 612)

The U.S. Court of Appeals for the Second Circuit, in its 1952 ruling on Bonwit Teller, affirmed that the only problem that they found with the employer's captive audience speech was that he did not make available to the union "the means by which his arguments, views, and opinions can be nullified..." (Chief Judge Swan quoting Board member Reynold's dissent in his partial dissent) when the employer also had a no solicitation rule in effect. The reasoning behind using such a clearly narrow decision to justify the proposed expansive violations of employers' First (speech and association) and Fifth (property) Amendment rights defies logic, especially in a time in which approximately two-thirds of Americans have a smart phone. It has never been easier for unions to communicate with employees, but the fact that the vast majority of private-sector employees appear to have no interest in belonging to a union is not enough for the petitioners.

Finally, they claim that the Board's refusal to reestablish the "equal opportunity rules" of the early 1950's in the 1966 General Electric and McCulloch Corp. decision [mirror] was somehow "conditional and tentative" (emphasis and interpretation added by petitioners), even though the actual decision clearly states (and the petitioners quote) that "...we are not persuaded on the basis of our current experience that other fundamental changes...are necessary" (GE, pg. 1251). The petitioners use the Board's admission that they have no experience with the Excelsior decision [mirror] (released on the very same day as the GE decision) to imply that the GE decision was somehow conditional and should be invalidated. After two years of experience with the Excelsior rule (requiring employers to provide the names and addresses of all eligible employees), and the effect it would have on "opportunities for employees' access to information" (GE, pg. 1251), the Board reviewed captive audience meetings in their 1968 Dyersberg Cotton Products decision [mirror], overruled the Regional Director's conclusions, and confirmed that non-coercive, employer-only captive audience meetings do not prevent employees from expressing their free choice of representative. The next nearly 50 years of Board decisions validated this stance by never determining that captive audience meetings in and of themselves interfered with laboratory conditions, and only overturned elections based on coercive captive audience meetings, or those that violated the 24-hour Peerless Plywood rule.

...abandon any pretense of impartiality...

In their final argument, the petitioners appear to have finally given up on misinterpreting Board decisions and case law, citing "common knowledge" and only acknowledging ideas that they agree with,

...It has long been common knowledge that In comparison with the relevant effect of the anti-union communicating power of employers in captive-audience encounters, Excelsior has had virtually no effect, which was well illustrated by the previously reviewed cases cited in the Harborside Healthcare dissent, all post 1966 cases.

Re-examination of Excelsior’s relevant effect—which is none and not in dispute—is indeed past due... (petition, pg. 27)

compare apples (highly dispersed airline and railroad employees) to oranges (bargaining unit employees who work and reside in a single metropolitan area),

Furthermore, the longstanding example of NMB (National Mediation Board) holdings that captive-audiences violate the “laboratory conditions” required for airline and railroad fair elections—which might relate to the greater success of unions winning elections under the RLA (Railway Labor Act) — provide additional grounds to support issuance of comparable holdings under the NLRA. (petition, pg. 28)

and fail to recognize the difference between not dismissing an idea and endorsing it ("The Problem's Solution", pg 28-30). Throughout the discussion of their proposed "solution", the petitioners repeatedly refuse to recognize that, even though the majority did not disagree with the dissenting member, the majority does not condone the dissenting opinion. Conversely, the petitioners completely ignore the dissents in both the Bonwit Teller Board decision and Appeals ruling that the primary concern was that equal opportunity violated the employers' rights. In a similar vein, the petitioners also ignore the entirely cogent argument:

As this rule is predicated upon the superior election campaign advantage of one party over another, the rule should encompass the accompanying rights of an employer in some instances to use union halls to address its employee union members. Yet there is nothing in the majority decision to indicate that the Board so intends to extend the rule. This is understandable as it is well-established under the Act that employers engage in surveillance in violation of the Act by attendance at union halls. (Bonwit Teller, pg. 617)
Reassuringly, the petitioners ultimately do return to completely misinterpreting the Board in the final paragraph discussing their solution: "...its legal authority should not pose a problem, especially considering its initial recognition expressed by the three distinguished Republican Board members in Peerless Plywood." However, the Board in Peerless Plywood expressed the exact opposite opinion. The Board went out of its way to remind all of us that Bonwit Teller was reversed and recognized how much worse the situation would have been had they attempted to apply it:

...the majority of the Board reverses the broad Bonwit Teller decision...it is plain that the situation is aggravated rather than equalized by an attempted application of the Bonwit Teller doctrine to elections. In an attempt to achieve equality, the effect of Bonwit Teller was to create a further imbalance...(Peerless, pg. 429)

...and still rest secure in the knowledge that they know best.

Despite the fact that with the most current revision of the Excelsior rule, employers must turn over essentially all contact information that they have on employees, the proliferation of smart phones, and the dawn of the social media age, the petitioners still believe that the only possible way that unions can communicate with employees is if the employer makes them listen. Rather than make the obvious assumption that the rest of the country has, namely, that unions (while helpful in improving workplace safety and conditions in the past) have long outlived their usefulness and simply cannot attract members, the petitioners conclude that the hemorrhage of union members is everyone else's fault. As soon as employers have to pay for unions to speak to their employees, all of the employees will suddenly realize the error of their ways and rush to the ballot boxes to sweep in a wave of collective bargaining:

In conclusion, Petitioners assert that promulgation of the proposed rule will inject a missing democratic element into the Board’s R-case election process. This should ultimately result in more collective bargaining, which the statutory policy of the Act encourages. (Petition, pg. 33)

This proposed rule would effectively apply a gag order to a company's ability to educate their employees on the facts of unions and squash the company's freedom of speech. As the President of a successful consulting firm, one of the biggest obstacles we face when assisting clients with campaigns is convincing them that these meetings are essential and that production will suffer during the campaign. Yes, the meetings will take up some production time, but the unions will cause many slowdowns through sabotage, filing safety violations, and through work-to-rule activities (in which employees carry out the bare minimum required of them to not be fired) both during the campaign and on an ongoing basis if the employees elect third-party representation.

If these professors were successful, it would double the time required to take employees off the floor, resulting in either employers taking an enormous hit to production or failing to do what is right to educate their employees. Do not be fooled by the argument that this will only apply where employers have a no-solicitation rule in place; many employers do, especially in retail, hospitality and manufacturing industries as allowing third parties onsite either creates safety hazards or interferes with the employer's ability to do business. As the unions already have the upper hand in opportunities to communicate with employees, this rule would have a tremendous impact on the outcomes of organizing campaigns. Labor attorneys know this, consultants know this, the unions know it, and you can rest assured that these professors certainly know it.

At this point, the Board has not opened up this proposed rule for comments, but we will notify you when it does. Also, please read this article's companion Confessions of a Union Organizer, which explores captive-audience meetings from the union's perspective.

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