National Labor Relations Board (“NLRB” or “the Board”) General Counsel Jennifer Abruzzo continues to push the Board to take aggressive and unprecedented pro-labor stances, seeking to overturn decades of well-settled jurisprudence.

On April 11, 2022, the General Counsel’s office filed a brief in Cemex Construction Materials Pacific, urging the Board to make two dramatic changes in current law under the National Labor Relations Act (“NLRA” or “the Act”). First, the General Counsel seeks to overturn the Board’s 52-year-old standard for obtaining a representation election, and to expand the ability of the Board to order an employer to bargain with a union even without its winning such an election.  Second, she urges the Board to reverse decades of precedent and find that so-called “captive audience speeches” by employers violate the Act.

Expanding Union Rights to Demand Recognition

By way of background, since NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), an employer presented with an alleged majority of signed union authorization cards does not have to take them at face value and recognize the union. Rather, it may insist on an election to determine the employees’ wishes and need not make any independent inquiry into the validity of the cards. 

In Cemex, the General Counsel’s office seeks to upend the decades-old representation election status quo by returning to the standard that existed prior to Gissel, as set out in Joy Silk Mills, 85 NLRB 1263 (1949).  Joy Silk required the employer to have a good-faith doubt regarding majority status in order to refuse a demand for recognition and move to a Board election.  If, after refusing a demand for recognition, the employer could not establish a good-faith doubt for its denial of the union’s majority status or committed any unfair labor practices that demonstrated the employer’s “rejection of the collective bargaining principal or . . . desire to gain time within which to undermine the union,” the employer faced a requirement that it bargain with the union.

The General Counsel has asked the Board to restore the Joy Silk standard, and require an employer to bargain with a union based on an alleged majority of signed authorization cards, even in the absence of any unfair labor practice, unless the employer can meet a burden of establishing “good-faith doubt” as to the validity of cards. According to the General Counsel, this framework covers the situation where an employer simply seeks time to lawfully persuade its employees against unionization. The General Counsel’s brief leaves employers wondering, then, what constitutes a good-faith doubt. As a practical matter, if the Board adopts this reading, it is likely many more employers will face demands that they bargain with a union even in absence of a secret ballot election.

Employer Speech Limitations

General Counsel’s Cemex brief comes on the heels of Abruzzo’s announcement last week that she would ask the Board to overrule existing precedent and hold that “captive audience” speeches—that is, meetings in which an employer requires employees to hear its side of the story during a union organizing campaign—were presumptively unlawful under the Act. 

Seeking to overturn Babcock & Wilson Co., 77 NLRB 577 (1948), in addition to requesting a bargaining order, Abruzzo has asked the Board in Cemex to hold that where an employer requires employees to convene on paid time to hear its point of view, or where management seeks to express its views on union organizing on a one-on-one basis while an employee is tending to their duties, such conduct violates the NLRA, insofar as it infringes on an employee’s right to “refrain from listening to employer speech concerning the exercise of their Section 7 rights” (that is, the right to engage—or refrain from engaging—in protected activity).  Such a ruling would reverse decades of precedent, and essentially leave employers powerless to discuss why, in their view, they believe employees should not vote for a union.

Early in her tenure, Abruzzo outlined a slew of policy priorities and case law she would seek to overrule.  As the last several weeks have shown, she is making good on her pledge to tip the scale of labor relations law heavily in favor of employees—to the detriment of employers.  Littler’s Workplace Policy Institute (WPI) will keep readers apprised of future developments.