Two National Labor Relations Board (NLRB) decisions earlier this month continue the Biden Administration’s and the NLRB’s war against employer rights. The NLRB held in Amazon.com Services LLC (11/13/24) that employers violate worker rights when they require employees to attend meetings (even while being paid) to hear the employer’s side in a union organizing campaign. The second anti-employer decision the NLRB handed down this month held that employers commit an unfair labor practice when they tell employees about the downside of unionization. Siren Retail Corp. d/b/a Starbucks (11/8/2024).

In the case of Amazon.com, the NLRB found the company violated federal labor law when it held employee meetings where the company presented its position on unionization. The NLRB and many pro-labor advocates label this type of meeting a “captive audience” meeting. Though in fact many employers make these meetings voluntary, the pro-labor NLRB has long sought to squelch employers’ rights to talk to their employees, particularly about something as pertinent as letting a third party into the organization that by law must act as an adversary to the employer.

This NLRB believes that these types of meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals” if they choose not to attend so just holding a meeting would violate the National Labor Relations Act (NLRA). This decision overturns an over 70-year precedent holding such meetings are lawful unless meeting attendance is held “on pain of discipline or discharge.” The ruling implements the current NLRB’s General Council’s 2022 memo arguing against captive audience meetings.

In the Siren Retail Corp./Starbucks case the pro-labor NLRB overturned a 40-year-old case recognizing the right of employers to communicate to their employees about the downside of being unionized. In this case the Company stated “If… you want to give your right to speak to leadership through a union, you’re going to check off “yes” for the election. If you want to maintain a direct relationship with leadership, you’ll check no ***{if you are represented by a union] the rules will then be grounded in a contract. And if it’s not in the contract, it’s not a conversation in my opinion that’s going to happen with leadership.”

This statement does not sound threatening or coercive.

The NLRB General Counsel Abruzzo argued that such statements could be taken as inherent threats. At first an NLRB Administrative Law Judge held this statement was legal. Totally unsatisfied with that decision, the GC took this case to the full Board and with the NLRB’s 3-1 Democrat majority got the decision to overturn its previous finding that such statements are legal as established in a 1985 case called Tri-Cast.

So, in the waning days of the “most pro-labor Administration in history” as President Biden has said, the most radical NLRB continues to swing against employers through its late term rulings.

With the incoming Trump Administration, the NLRB General Councill will probably be fired on Inauguration Day in January. A more moderate GC will be appointed. The NLRB itself is expected to become more employer friendly with a Republican majority eventually. The new Board Chair, which can turnover more quickly than the full Board can, is expected to be Marvin Kaplan, currently the only Republican Board member serving. This new Board is expected to reverse the many pro-labor rulings employers have had foisted on them in the last three plus years by the current Board and Administration.

Another change expected with the turnover of the NLRB is its foray against restrictive covenants such as non-compete, non-solicitation, and “stay or pay” provisions.

Questions on other impending changes to the NLRB revolve around:

When may the NLRB lose its Democratic majority? This may take some time. Democratic Chair Laurent McFerran could be reconfirmed by the Senate as soon as December 16^th. Some expect her to resign rather try to serve out another term with the Trump Administration breathing down her back. The other Democrat Board Members will likely serve out their terms for the next year or so.

How will the new NLRB change labor law? The new Board will no doubt turn its attention to reverse “radical” decisions such as Cemex and Stericycle.

What will the NLRB be able to change in the meantime? As we said earlier this month after the election, the current NLRB is doubling down on implementing new standards. The current NLRB moved to prohibit employer meetings with employees that they consider captive audience meetings and also made employer statements about unionization that they believe are disparaging, an unfair labor practice. Both decisions run contrary to decades of labor precedent.

Last week President-elect Trump threw a curveball at employers by announcing a surprising nominee for U.S. Department of Labor Secretary. Trump announced he was nominating Republican Rep. Lori Chavez-DeRemer of Oregon. She has supported the anti-employer Protecting the Right to Organize Act (PRO) legislation and has been endorsed by Teamster President Sean O’Brien. Despite prognostications about a more employer-friendly NLRB, this may portend a more balanced Republican Board that is comprised of middle of the road Board members rather than some pro-business members.

How will other branches of government affect federal labor law? The Trump Administration will appoint new federal judges that will reflect their view of labor law. This could impact the NLRB’s very existence as cases are brought challenging the NLRB’s constitutionality. The Trump Administration could also limit the NLRB’s financial resources to choke its ability to exercise its powers. With the Republicans control over the Executive and Legislative branches, new labor laws could be passed that are more business friendly.

ASE will continue to watch developments both federal and state around employment and labor issues.

Sources:

Employment Law Worldview. Deja Brew All Over Atain: NLRB Overturns Decades of Precedent, Further Restricting Employer Speech (US) (11/12/2024

Law360 Employment Authority. NLRB’s Captive Audience Shift Impactful, At Least for Now (11/14/2024)

Lexology. Another Day, Another Precedent Obliterated: NLRB Upends Decades of Established Law to Hold Captive Audience Meetings Unlawful (US) (11/13/2024)

Lexology. How Will the US Election Outcome Affect Labor Law? A Deep Dive into the NLRB’s future. (11/18/2024)

Law360. Trump Picks Teamsters-Backed Oregon Rep. for Labor Secretary. (11/22/24)