Within the past week, the National Labor Relations Board has reversed over 100 years of combined precedent with two decisions that will make it easier for unions to organize American workplaces.
Employer Statements About Unionization’s Impact on Employer-Employee Relationship
On November 8, the Board decided that it would start evaluating and deciding on a case-by-case basis whether employer predictions about how unionization may impact the relationship between individual employees and their employer are unlawful threats.
What does this mean in plain English?
Typically, an employer can offer its opinion on how unionization might make it more difficult for individual employees to communicate directly with managers and supervisors. Why would that be? If a union represents the employees, it often talks for the workers. Since 1985, the Board had deemed those statements about the relationship between individual employees and their employer to be categorically lawful.
But not anymore.
Going forward, the Board will analyze such statements on a case-by-case basis to evaluate whether they are potentially threatening or coercive. According to the Board, an employer’s predictions of negative impacts from 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.”
In other words, if the company ends up in front of the Board having to defend its statements about unionization, it’s probably screwed.
No More Captive-Audience Meetings.
Yesterday, the Board ruled that an employer cannot require employees to attend meetings in which, under threat of discipline or discharge, the employer expresses its opinions about unionization. The Board concluded that so-called “captive audience” meetings violate the National Labor Relations Act because they might reasonably interfere with an employee’s right to form a union (or not form a union).
Does this mean employers can’t speak to employees about the cons of unionization? No, as long as workers are provided reasonable advance notice of the subject of any such meeting, that attendance is voluntary with no adverse consequences for failure to attend, and employees do not maintain any attendance records.
Should employers clutch their pearls?
Perhaps, initially. But with a Republican presidency, the complexion of the Board will change soon enough. And with that, many pro-union rulings like these and others will be reversed.
Hopefully, this is a moot point because you pay your workers well and treat them with enough respect and dignity that forming a union is the last thing on their minds.