Articles Discussing Labor Union Organizing.

TakeawaysUnder the Fair Choice-Employee Voice rule, construction unions may seek to remain the bargaining representative for a construction employer’s workers by relying solely on contract language, without evidence that employees ever supported the union.To avoid unionization, construction employers should be wary of any proposed union agreement and review it carefully.A National Labor Relations Board with a Republican majority is expected under the Trump Administration to re-evaluate the rule.Related link

In this episode, Jen surveys the current state of protections for employees who engage in union activities.

On January 1, 2025, Senate (SB) Bill 399, officially went into effect in California. California joined other states, including Illinois, Connecticut,

In this episode, Jen discusses state and national trends regarding employee meetings and union protections, even for non-union workers. 

By: NLRB’s New Ruling Bans Captive-Audience Meetings

By: NLRB’s New Ruling Bans Captive-Audience Meetings

Earlier this week, on November 13, 2024, the National Labor Relations Board (NLRB) issued its decision in Amazon.com Services LLC, ruling that employers violate the National Labor Relations Act (NLRA) by requiring employees to attend “captive-audience meetings” under threat of discipline or discharge. In doing so, the Board overruled its 1948 decision in Babcock & Wilson Co. Historically, mandatory captive-audience meetings have served as a powerful tool, which allowed employers to share their views with all members of the bargaining unit on why the workplace should remain union-free. 

The decision is not surprising. In April 2022, General Counsel Abruzzo issued a memorandum announcing that she planned to ask the Board to find that mandatory meetings where employers provide their outlook on unionization where unlawful under the NLRA. In Amazon, the Board followed through holding that Babcock was poorly reasoned and that captive audience meetings “have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 right to freely decide whether or not to unionize…” 

A number of states, including California, have recently enacted legislation banning, at least in part, captive audience meetings. Under California’s AB 399, effective January 1, 2025, California employers can no longer discharge, discriminate, retaliate against, or threaten to carry out such action when an employee refuses to attend a captive audience meeting where the employer is discussing their views about politics, including unionization. 

Key Takeaways 

1.  Voluntary Meetings Are Still Allowed: 

The Board clarified that employers are still allowed to hold meetings where they express their views on unionization, but only under very specific conditions:

• Employees must receive reasonable advance notice of the meeting, including the subject matter.
• Attendance must be voluntary, with no adverse consequences for those who choose not to attend.
• No attendance records may be kept.

2.  The Change Will Be Applied Prospectively 

The Board made it clear that this new standard will only apply moving forward, respecting the reliance employers may have placed on Babcock & Wilson and therefore the NLRB will not attempt to claim that prior mandatory meetings violated the Act.

What is Next? 

We expect that both the Amazon NLRB ruling and the new California statute will be challenged in the courts. Under the recent Loper Bright decision, the federal courts are less likely to respect an agency decision that overturns a 75-year precedent, and we believe there is a good chance that the decision could be overturned by the courts, especially if it makes it all the way to the United States Supreme Court.  

In addition, we know that a number of other state statutes banning mandatory captive audience meetings, like the one in California, are being challenged in the courts on the grounds that they either (a) are an unconstitutional restriction on the freedom of speech; and/or (b) are preempted by federal law and the National Labor Relations Act.  

Finally, with the recent election results, employers can expect to see another paradigm shift under the new Trump Administration. Even if the ban on mandatory captive audience meetings survives court scrutiny, the Trump NLRB, which will have a 3-2 pro-employer majority, is likely to look at all of the recent pro-union decisions issued by the Biden Board and seek to overturn them. Thus, it is doubtful that the federal ban on mandatory captive audience meetings will survive a four-year Trump NLRB.

Of course, until then, Amazon reflects the current standard, and effective January 1, a corresponding California ban on mandatory captive audience meetings will kick in. Employers involved in union elections also must be wary that under the Board’s 2023 Cemex decision, holding a captive-audience meeting that violates Amazon could be deemed an “unfair labor practice” that the Board may throw out the results of any election and issue a Cemex bargaining order requiring the employer to recognize and begin bargaining with the union. 

For more information about this decision and other critical legal updates for 2025, we encourage you to register for CDF’s complimentary November 20 webinar.

TakeawaysThe Board overturned longstanding precedent that permitted employers to hold mandatory captive audience meetings during union election campaigns. Employer-held mandatory captive audience meetings will now be unlawful unless employers meet specific “safe harbor” requirements when conducting group meetings.The new standard applies only to future cases, not retroactively.Related link

By: With Unionization Efforts on the Rise, NLRB Tightens Scrutiny on Employer Statements During Union Elections

By: With Unionization Efforts on the Rise, NLRB Tightens Scrutiny on Employer Statements During Union Elections

The landscape of labor relations is rapidly shifting, particularly for California employers, as unionization efforts gain momentum across industries. Under President Biden and National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo, the agency has pursued a significant pro-union stance, ramping up scrutiny on employer conduct during union election campaigns. While that is likely to change with the new administration, the NLRB continues to issue many pro-union decisions that are expressly designed to make the path to union organizing easier for unions.

In a pivotal decision issued earlier this month, the NLRB overruled a 40-year-old precedent that had previously allowed employers to inform workers about certain potential consequences of unionization, including the likely changes to their relationship with management. The case, Siren Retail Corp. d/b/a Starbucks, marks a clear shift in how the current Board believes employer statements during union campaigns should be scrutinized. However, following Trump’s election to his second presidential term, CDF anticipates this ruling may be successfully challenged, but it remains the law until a new decision overturning it is issued. 

The Siren Decision: A Sea Change in Employer Communication

Historically, employers could tell employees that unionizing might limit their direct access to management or change how management addresses individual employee concerns. This was permissible under the 1985 Tri-Cast decision. However, this month, in Siren, the NLRB determined that the Tri-Cast ruling “erred in deeming categorically lawful nearly any employer statement to employees touching on the impact that unionization would have on the relationship between individual employees and their employer.”

While the NLRB still acknowledges that employers can make certain factual statements about unionization, such as acknowledging that union representation will change the dynamics of the employer-employee relationship, it now requires that such statements be made with more caution. Specifically, the Board’s majority held that any employer statements about unionization must be “carefully phrased” and based on objective facts, conveying the employer’s belief about the probable consequences of unionization. If such statements are not grounded in objective fact, or predict negative consequences that would result from the employer’s own actions, it is “no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion” and will be found to be a violation of the National Labor Relations Act by the Board.

A Changing Political Landscape

While the NLRB, under President Biden’s administration, has been about as pro-union as any Board in recent memory, this dynamic will almost certainly change dramatically under the Trump Administration. The courts have upheld the President’s authority to remove the NLRB’s General Counsel on inauguration day when Biden did this almost four years ago. Trump will likely take similar measures and appoint a new NLRB General Counsel shortly after being sworn into office. Just as Biden’s Board came with sweeping legal changes, CDF anticipates a significant paradigm shift under Trump’s term, returning to more employer-friendly standards and precedent. 

For more information on the Siren decision and other important recent NLRB decisions, as well as a discussion on the shifting tides of the NLRB, we encourage you to register for our November 20 complimentary webinar, where these items will be discussed at some length, as we help California employers prepare for 2025. 
 

Takeaways:The NLRB overturned its 1985 Tri-Cast decision, which protected employer statements about the general consequences of unionization on the employer-employee relationship.Reversing precedent, the Board will now use a case-specific approach to determine if employer statements are unlawfully coercive.The new standard applies only to future cases, not retroactively.

The National Labor Relations Board’s Fair Choice-Employee Voice Final Rule was enacted on September 30, 2024, significantly changing union elections.