Could a New NLRB Case Limit Bosses’ Best Anti-Union Tool, the Captive Audience Meeting?

Shaun Richman February 3, 2016

The National Labor Relations Board has issued two decisions this week that could prove beneficial to workers trying to organize a union. (NH Labor News)

The cap­tive audi­ence meet­ing, management’s most impor­tant weapon” in an anti-union cam­paign, is final­ly being chal­lenged in a peti­tion to the Nation­al Labor Rela­tions Board that could help re-bal­ance the scales in union rep­re­sen­ta­tion elections.

Held in all-staff, small-group or one-on-one for­mats, employ­ers use these manda­to­ry meet­ings to con­fuse and intim­i­date employ­ees into vot­ing against union rep­re­sen­ta­tion. In a 2009 study, labor rela­tions schol­ar Kate Bron­fen­bren­ner found that nine out of ten employ­ers use cap­tive audi­ence meet­ings to fight a union orga­niz­ing dri­ve. Threat­en­ing to cut wages and ben­e­fits in 47 per­cent of doc­u­ment­ed cas­es, and to go out of busi­ness entire­ly in a stag­ger­ing 57 per­cent, these cap­tive audi­ence meet­ings cor­re­late with an unsur­pris­ing 43 per­cent union win rate when used.

Such meet­ings were ille­gal under the orig­i­nal Nation­al Labor Rela­tions Act. The courts even­tu­al­ly decid­ed that as long as a boss’s threats were mere­ly implic­it, it would be a vio­la­tion of his puta­tive free speech” rights for the Labor Board to restrain their abil­i­ty to make his obvi­ous opin­ions unavoid­able. (The courts still love to use free speech” as a jus­ti­fi­ca­tion for union-bust­ing; Friedrichs v. CTA, the case that could dec­i­mate Amer­i­can pub­lic sec­tor unions cur­rent­ly before the court, is a claim of infringe­ment of free speech.)

I recent­ly advo­cat­ed for an equal time” pro­vi­sion, that any manda­to­ry on-the-clock dis­cus­sion of an upcom­ing union cer­ti­fi­ca­tion vote make room for a pro-union pre­sen­ta­tion, be incor­po­rat­ed in a new labor law reform bill. But these peti­tion­ers to the NLRB — 106 of the lead­ing labor-side and neu­tral-par­ty experts on labor rela­tions (the boss’ lawyers couldn’t bring them­selves to endorse the need for fair debate, for some rea­son) — real­ized that equal time” could be made a reg­u­la­to­ry rule right now.

Cap­tive audi­ence” meet­ings: not always the norm

Equal time was a rule, briefly in the 1950’s, and the NLRB is on record as invit­ing unions to ask for it to be restored since 1966. After the 1941 Supreme Court deci­sion that estab­lished a boss’s First Amend­ment right to pum­mel his employ­ees into anti-union sub­mis­sion, the NLRB spent the next quar­ter cen­tu­ry ping-pong­ing back and forth between dif­fer­ent legal stan­dards on employ­er speech, union access to the employer’s prop­er­ty and the so-called lab­o­ra­to­ry con­di­tions” (basi­cal­ly, some fan­ta­sy world in judges’ imag­i­na­tions where work­ers don’t feel threat­ened, bribed or unin­formed) under which a fair elec­tion can be conducted.

In a 1966 case, Gen­er­al Elec­tric Co. and McCul­loch Corp., unions peti­tioned to over­turn elec­tion loss­es caused by the employer’s com­bi­na­tion of manda­to­ry cap­tive audi­ence meet­ings and restric­tion of union orga­niz­ers from the employer’s premis­es. The unions essen­tial­ly sought to reestab­lish the equal time rules of the 1950’s. The Board declined to do so — but only con­di­tion­al­ly and tentatively.

Their rea­son: on the very same day, the Board hand­ed down a deci­sion in a case called Excel­sior Under­wear, Inc., in which employ­ers were man­dat­ed to hand over to the union a list of home address­es of all bar­gain­ing unit employ­ees with­in a cer­tain num­ber of days of the sched­uled elec­tion. The board declined to rule on the equal time com­plaint in Gen­er­al Elec­tric in light of the increased oppor­tu­ni­ties for employ­ees’ access to com­mu­ni­ca­tion which should flow from Excel­sior, but with which we have, as yet, no experience.”

Sev­er­al gen­er­a­tions of union orga­niz­ers now have expe­ri­ence with Excel­sior lists. Chas­ing around a bunch of work­ers in vis­its to home address­es that are fre­quent­ly incor­rect after the boss has been free to spend an unlim­it­ed num­ber of hours in manda­to­ry meet­ings scar­ing the crap out of them is no sub­sti­tute for hav­ing an equal amount of time at work dur­ing the work­day to make the case for a yes” vote for the union.

Why didn’t unions appeal the Gen­er­al Elec­tric deci­sion in 1967 (or 1977) after enough expe­ri­ence with the new Excel­sior rules? The answer is prob­a­bly that orga­niz­ing was not an insti­tu­tion­al and strate­gic pri­or­i­ty for most inter­na­tion­al unions until John Sweeney became Pres­i­dent of the AFL-CIO in 1995 with a promise to orga­nize at an unprece­dent­ed pace and scale.”

Regret­tably, the orga­niz­ers who recharged the union orga­niz­ing depart­ments in the mid-1990’s most­ly accept­ed the legal rules as pre­sent­ed. And those of us who fol­lowed in their foot­steps, myself includ­ed, most­ly did the same. There is a per­va­sive ten­den­cy in our move­ment to accept that when it comes to labor struc­ture, strat­e­gy and law, it is what it is”— the hor­ri­ble struc­tures of Amer­i­can col­lec­tive bar­gain­ing rules are a giv­en and we don’t have much oppor­tu­ni­ty to change them.

Three rea­sons to cheer equal time”

But this new rule, while a nar­row tweak of an oth­er­wise bro­ken law, would be a big deal if adopt­ed by the NLRB. First, because it would cause many employ­ers to aban­don the cap­tive audi­ence tac­tic alto­geth­er rather than make time for orga­niz­ers to state the case for form­ing a union on the company’s premis­es and on the company’s time. Since these meet­ings are one of the boss’s prin­ci­pal tools for beat­ing unions, that’s a good thing.

Oth­er employ­ers will like­ly con­tin­ue the cap­tive audi­ence meet­ings and sim­ply refuse to com­ply with the equal time require­ment, since the only pun­ish­ment for vio­lat­ing the rule would be a rerun elec­tion. This will par­tic­u­lar­ly be the case while the new rule is inevitably chal­lenged in the courts. In my expe­ri­ence, the new expe­dit­ed elec­tion pro­ce­dures that the NLRB insti­tut­ed last May — which have increased both the num­ber of union elec­tion peti­tions filed and the per­cent­age of elec­tions won by unions—have made employ­ers more like­ly to engage in brazen vio­la­tions of the Act in order to win delays before the union elec­tion. Deter­mined to win” at any cost, they have less fear of unfair labor prac­tices and rerun elec­tions, because while the legal bills will add up, at least they get to impact the elec­tion timeline.

Still, ULPs and grounds for over­turn­ing unfa­vor­able elec­tions, while hard­ly jus­tice, are use­ful chips for orga­niz­ers to hold. These things cost boss­es mon­ey and cred­i­bil­i­ty and can serve to help wear down an anti-union employ­er in a long-term campaign.

But the best pos­si­ble out­come may come from the employ­ers who embrace the equal time rule, there­by forc­ing unions to up their orga­niz­ing game.

If the NLRB adopts the new rule (which is, to be clear, still a big if”), they will almost cer­tain­ly lim­it equal time to mem­bers of the bar­gain­ing unit only — not orga­niz­ers and lead­ers on the union’s staff. Since intim­i­da­tion is the point of cap­tive audi­ence meet­ings, some employ­ers may assume that they can cow their own employ­ees who stand in as union representatives.

What is need­ed are work­ers who can speak con­fi­dent­ly and defin­i­tive­ly on behalf of their fel­low work­ers, in state­ments of we” and us.”

Despite the ample research that rep­re­sen­ta­tive orga­niz­ing com­mit­tees are an essen­tial com­po­nent of suc­cess­ful cam­paigns, too many unions gloss over real com­mit­tee build­ing, run quick card dri­ves and con­duct too much of their con­tract bar­gain­ing in degrees of opac­i­ty. This is why too many orga­niz­ing cam­paigns fail.

Take, for instance, a favorite top­ic of employ­er cap­tive audi­ence meet­ings: strikes. The boss’ mes­sage will inevitably be the union will make you go on strike. This is a dou­ble wham­my of the boss’ real most impor­tant weapon”: fear.

Fear, fore­most, of the boss’ pow­er. If the boss decides an anti-union pre­sen­ta­tion is a more impor­tant use of your time and his mon­ey than the actu­al job that you were hired to do and makes him mon­ey, shud­der to think about what he may decide to do with your job if you defy his anti-union will.

But fear, also, of los­ing agency by sub­mit­ting to the author­i­ty of union boss­es.” Who wants to run the gaunt­let of employ­er oppo­si­tion to work­place democ­ra­cy only to find out that your union might jam deci­sions down your throat like the old boss did?

Imag­ine a well-trained and empow­ered work­place leader respond­ing to the boss’s provo­ca­tion with the calm expla­na­tion, We would only go on strike if we want­ed to, and had to, and if we could win. And we can only win if we all walk out togeth­er. I don’t know about you, but I would only strike for a damn good rea­son.” In one short breath, the boss’s mes­sage is blown away, and the work­ers are weigh­ing the source of their pow­er.

An uphill climb

The NLRB has recent­ly issued a num­ber of rule changes that have helped restore a degree of neu­tral­i­ty to work­place law. These have been extreme­ly con­tro­ver­sial in busi­ness cir­cles. The Board also has issued weighty deci­sions regard­ing the abil­i­ty of uni­ver­si­ty grad­u­ate employ­ees to orga­nize and clar­i­fi­ca­tion on char­ter schools as pri­vate employ­ers queued up for fur­ther con­tro­ver­sy this spring. Plus, Board mem­bers who only got appoint­ed through a rare bi-par­ti­san deal will start see­ing their terms expire this sum­mer when an elec­tion-sea­son Con­gress has lit­tle incen­tive to work togeth­er on approv­ing their replacements.

All of which is to say, don’t hold your breath for a speedy response to this equal time petition.

After all, pri­ma­ry peti­tion­er Charles Mor­ris, author of The Blue Eagle At Work, has seen his peti­tion on minor­i­ty union cer­ti­fi­ca­tions go unan­swered for over a decade. His co-pri­ma­ry peti­tion­er, Mar­quette Uni­ver­si­ty law pro­fes­sor Paul Secun­da, says they under­stand the uphill climb. He says they filed, inde­pen­dent­ly of any unions, sim­ply to get the con­ver­sa­tion going. 

We just want a fair vote. That’s all,” Secun­da says.

If Mor­ris and Secunda’s idea gains any trac­tion in union cir­cles, its fastest path to a rul­ing may be by a union appeal­ing to over­turn an elec­tion loss in a cam­paign where man­age­ment locked out the orga­niz­ers and con­duct­ed cap­tive audi­ence meet­ings. Unlike a peti­tion, the NLRB would at least have to respond to such an appeal. 

And there’s no short­age of grounds for appeal. Nine­ty per­cent of all union elec­tion cam­paigns see employ­ers uti­lize cap­tive audi­ence meet­ings and more than half of those see work­ers direct­ly threat­ened with job loss result­ing in more than half of all union elec­tions where employ­ers sub­ject work­ers to cap­tive audi­ence meet­ings. I sus­pect many union staffers and mem­bers read­ing this have a lost union elec­tion cam­paign near and dear to your heart that could be appealed on the grounds that Mor­ris and Secun­da lay out.

Still, Mor­ris and Secunda’s effort high­lights the val­ue of bring­ing out­side per­spec­tive into union strat­e­gy. While many unions are under­stand­ably focused on beat­ing back the Friedrichs v. CTA assas­si­na­tion attempt and on prac­ti­cal efforts to sign up agency fee pay­ers to union mem­ber­ship, there is a bad need for a no-holds-barred strate­gic dia­logue on the future of labor. It would be won­der­ful if the AFL-CIO could for­mal­ly con­vene it, but it clear­ly would need one or more of our great labor col­leges to pull it togeth­er. When it comes to revi­tal­iz­ing the labor move­ment, there might not be a lot of new ideas, but there are clear­ly lots of good old ideas that we’ve some­how forgotten.

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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