By Adam Doerr & Jon Anderson
It has become increasingly apparent that the Biden Administration’s National Labor Relations Board (NLRB) is aggressively pushing labor-friendly positions, like those seen under the Obama Administration.
Now it appears the NLRB’s General Counsel has taken aim at Section 8(c) of the National Labor Relations Act (the Act), and in so doing undermines 75 years of jurisprudence as “incorrectly concluded.”
On April 7, 2022, the NLRB announced the General Counsel’s desire to restrict employers’ ability to speak to their employees about unions, whether in so-called “captive audience” meetings, or whether “cornered by management while performing their job duties.” The General Counsel claims such meetings and conversations “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.”
In that regard, the General Counsel asserts that employees’ right to not “listen to such speech” was recognized by the Board “[o]ver 75 years ago,” citing Clark Bros. Co. 70 NLRB 802, 805 (1946).
However, Clark Bros. was extremely short-lived, and severely undercut the following year by the passage of the Labor Management Relations Act, and the then-new “Section 8(c),” codifying employers’ “free speech” rights under the Act. Specifically, Section 8(c) states that the “expression of any views, argument, or opinion…shall not constitute or be evidence of an unfair labor practice” so long as it “contains no threat of reprisal or force or promise of benefit.” (emphasis added).
Thus, since the advent of Section 8(c) – nearly 75 years ago — employers have been able to explain to employees how unionizing changes the work environment, and their working relationship, even during required meetings or during work time, so long as the employer’s speech or other conduct contained no “threat of reprisal or force or promise of benefit,” and was not otherwise “coercive.” But the Biden Administration, through the NLRB’s General Counsel, wants to change that.
In addition, the General Counsel’s stated concerns about employers “commonly” using “express or implied threats” appear misplaced. Employers’ speech is already scrutinized under the NLRA, and threatening statements and coercive conduct are already unlawful. If such coercive or threatening conduct during an organizing campaign interferes with employees’ ability to have a free and fair election, the NLRB can already impose a range of remedies, including re-run elections or even affirmative bargaining orders. See, e.g., Gunderson Rail Services, LLC, 364 NLRB No. 30 (2016) (imposing bargaining order in light of coercive conduct during organizing campaign). In light of existing laws and remedies, there is no need to dramatically rewrite the law to silence employers by prohibiting important conversations from occurring. The better approach, consistent with Section 8(c) and 75 years of precedent, is to deal with threats if and when they arise
Instead, the NLRB General Counsel appears intent on declaring all mandatory meetings to be inherently and per se unlawful if they touch on issues concerning the exercise of Section 7 rights, like explaining how collective bargaining works or how a union might change how workplace problems are resolved.
The day before this announcement, the NLRB issued a Press Release highlighting that unions have seen a surge of interest, resulting in a 57 percent increase over the prior year in election petitions filed with the NLRB between October 1, 2021 and March 31, 2022.
With this agenda, along with support from the Federal Government and high-profile organizing campaigns at Amazon and Starbucks, we can only expect organizing activity to continue to increase.