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Biden Administration Seeks to Limit Employer Speech to Aid in Union Organizing
June 15, 2022
Recently, leading officials in the Biden administration have taken steps to prevent employers from sharing their lawful views on collective bargaining in order to aid union efforts to organize more employees. These actions range from encouraging employers to refrain from discussing unions with employees, to seeking to prohibit any discussion about unions with employees while they are working. If the National Labor Relations Board ("Board") implements the administration’s actions, it would make it significantly harder for employers to oppose union organizing campaigns and make it easier for employees to organize. 

1. The NLRB’s General Counsel Argues Employer’s Formal and Informal Meetings to Discuss Unions are Unlawful.
Section 8(c) of the National Labor Relations Act (“NLRA”) has historically been interpreted to allow employers to require employees to listen to an employer’s speech about unionization so long as the employer does not threaten its employees or promise them anything in exchange for voting against the union. However, the Board's General Counsel, Jennifer A. Abruzzo (the “GC”), believes these mandatory meetings are unlawful regardless of the presence or absence of employer threat or coercion. The GC stated that she will ask the Board to prohibit employers from requiring employees to convene on paid time to hear its point of view on unions, or where management seeks to express its views on union organizing on a one-on-one basis while an employee is tending to his or her duties. 

It would be logical for the Board or the GC to prohibit employers from disciplining an employee for refusing to listen to the employer's speech about unions, however, the GC’s position goes well beyond this. Instead, the GC's position makes it virtually impossible for an employer to lawfully discuss union organizing with employees without violating the NLRA.

2. The GC Argues the Board Should Order Employers to Bargain with Unions if the Employer Refuses to Recognize the Union Represents a Majority of its Employees Based on Signed Union Authorization Cards.
In a recent brief, the GC argued that the Board should reinstate its decision in Joy Silk Mills (“Joy Silk”) – which the Board officially abandoned in 1971 – for when an employer must bargain with a union without a secret ballot election. Under Joy Silk, the Board could order an employer to bargain with a union if the union demanded to bargain and stated that the majority of employees supported the union unless the employer had a good faith belief that the majority of employees did not support the union. 

The "good faith belief" could not be based on a desire to stall by using the Board’s election procedures and persuade employees not to support the union. If the employer required the union to petition for an election and the employer engaged in any unfair labor practices, the Board would conclude the employer did not act in good faith when it refused to bargain with the union. The Board (by accident) abandoned Joy Silk after the Supreme Court’s opinion in Gissel, which set a much tougher standard for the Board to order an employer to bargain with a union when a union claimed an employer interfered with employees’ free choice in an election.

A return to Joy Silk would not be the equivalent of a “card check” system – in which a union is certified as the exclusive bargaining representative for employees whenever it proves it collected authorization cards from a majority of those employees – that many pro-union advocates want. Indeed, during the 20 years that Joy Silk was the law, employers developed ways of lawfully refusing unions’ demand to bargain when the union claimed it collected authorization cards from a majority of employees. See, e.g., Gilbert, A. L., Co., 110 NLRB 2067, 2069 (1954). And the Board rarely exercised its power to force employers to bargain with a union when the employer rejected a demand to bargain and committed no other unfair labor practice charges.  

Reimposing Joy Silk would, however, pressure employers to say or do nothing in response to a union organizing campaign. Under Joy Silk, if an employer rejects a union’s demand to bargain after the union claims to have the support of the majority of employees and any of the employer’s speech during an organizing campaign crosses the line into an unlawful threat or promise, the Board will order the employer to bargain with union even if the union loses an election. Rather than a back-door card check, reinstating Joy Silk appears to be a tool for the GC to chill employer speech opposing unionization.

3. OPM Tells Federal Agencies to Not Talk About Unions During Organizing Campaigns and Encourages Private Employers to do the Same.
On April 12, 2022, the Office of Personnel Management ("OPM"), which oversees employees who work for the federal government, released guidance for federal agencies “regarding neutrality during organizing campaigns.” OPM said that, as the nation’s largest employer, the Federal government was issuing the guidance to “lead by example and serve as a model employer.” OPM’s guidance included training for agencies’ supervisors and managers titled “Building Blocks of Neutrality During Union Organizing Drives.” The training provides this guidance:

What should supervisors and managers do during a union organizing campaign?

Best Practice: Reserve your opinions about the union and seek advice from the agency’s labor relations staff or the agency’s legal office prior to getting involved in discussions about, or commenting on, labor relations matters during an organizing campaign. 

Employers facing a union organizing campaign should, without question, seek advice before talking to employees about unions and collective bargaining. But employers should not “reserve [their] opinion about” unions throughout a campaign. When employees attempt to organize a union, it is critically important for employers to provide employees with facts, opinions, experiences, and arguments regarding unions without threatening employees or making any promises. If employers remain silent or neutral, employees will inevitably support a union that is free, under the law, to promise it will negotiate pay raises, better benefits, and protection from unfair employment actions. 

While many of the developments coming out of the federal government are decidedly pro-union, and despite the news about union wins at Starbucks and Amazon, union membership continues to decline. The Biden administration’s efforts to suppress historically protected employer speech, reinstitute Joy Silk, and encourage employers to remain silent in response to union organizing are intended to provide unions an easier path to organize employees. These efforts provide a strong incentive for employers – with the assistance of counsel – to proactively evaluate whether they are at risk of an organizing campaign and train their managers to lawfully identify and discuss union activity with employees.
Labor & Employment Law Kevin L. Carr
304.340.3877 Mitchell J. Rhein
304.340.3889 Peter R. Rich