Saturday, January 23, 2016

Captive Audience Petition

NLRBA few days ago, over 100 law professors (present company included) filed a petition with the NLRB to change its approach to captive audience meetings.  Under the proposed rule, the NLRB would return to its prior policy of providing a union the opportunity to hold a meeting with employees if the employer does the same.  This differs from the current approach, under which employers can hold as many captive audience meetings that it wants (up to 24 hours prior to the vote), without giving the union similar access to employees.

An excerpt of the news release follows.  You can see the full release here and the petition (which was primarily authored by Charlie Morris and Paul Secunda) here

One-hundred and six (106) professors of labor law and employment relations have just filed an “interested person’s” petition with the National Labor Relations Board, the intent of which is to correct an unfair and undemocratic practice that American employers have long used to keep unions from winning NLRB elections. That practice is conducting what has come to be known as “captive-audience” meetings. These are anti-union talk sessions that management stages with employees on company premises during paid working time, with attendance compulsory and the union denied an equal opportunity to address those employees. It is a practice that employers tend to use almost reflexively whenever their employees are engaged in union organizing or seem likely to become so engaged. Such conduct was originally held to be a violation of the National Labor Relations Act, but that was changed in1953 by a Republican dominated Labor Board. Although the Board in 1966 commenced a reconsideration of that ruling, it never completed the process, deliberately leaving the matter open for change sometime in the future— which may now be about to happen. . . .

The petition points out that a similar rule has long prevailed for union elections on the airlines and railroads, which are covered by the Railway Labor Act, a similar yet different statute The National Mediation Board, which administers those elections, invalidates any election where captive-audience meetings have been held and the union loses, whereupon a new election is ordered. That practice has had a noticeable impact, for such meetings almost never occur during union-organizing campaigns on the airlines and railroads, and there have been very few instances of such violations. Petitioners assert that the absence of captive audiences in those industries might even be a significant factor—though certainly not the only factor—that accounts for the high rate of union membership—sixty-two percent—among airline and railroad employees; whereas it is less than seven percent among private-sector employees as a whole, a difference about which the public seems unaware. 

-JH

https://lawprofessors.typepad.com/laborprof_blog/2016/01/captive-audience-petition.html

Labor and Employment News, Labor Law | Permalink

Comments

Forgive me if I am wrong here, but isn't this proposed rule likely to fall under the Court's decision in Lechmere? Yes, Nutone left the question open but it seems that Lechmere provided a fairly clear telegraph of what the answer would be. Perhaps is a way to revisit Lechmere but I was surprised that the petition makes no mention of how it might or might not apply. Seems to be the elephant in the room.

Posted by: Anon | Jan 28, 2016 8:56:25 AM

Nutone is fully covered and accounted for in the petition.

Posted by: Charles J. Morris | Jan 28, 2016 4:33:20 PM