Bans On Mandatory Meetings About Unionization: Where Does Your State Stand? : LRI INK

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Subject: Bans On Mandatory Meetings About Unionization: Where Does Your State Stand? : LRI INK

March 7, 2024

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Bans On Mandatory Meetings About Unionization: Where Does Your State Stand?

by Kimberly Ricci

Nearly two years ago, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo expressed her intent to have so-called “captive audience” meetings declared illegal under the NLRA. In doing so, she claimed that workers shouldn’t have to listen to employers talk about unions. Abruzzo called these meetings inherently coercive, with the unfortunate outcome of preventing businesses from countering union misinformation.

In a further wrinkle, several states – Minnesota, New York, Connecticut, Maine, and Oregon – have taken matters into their own hands by banning mandatory meetings. Similar legislation is currently on the table in California, Vermont, Colorado, Maryland, Illinois, Massachusetts, and Washington, which aims to lump unionization into a nebulous gathering of “political matters” that are now off-limits for discussion in such meetings.

As our own Phil Wilson has pointed out, Abruzzo’s quest to shut down NLRA-protected speech has been happening at a time when “unions have more access to employees today than they ever have.” The board has also been doing everything possible to ease the path to unionization while making it harder for employers to counter-organizing tactics.

Of course, the board should want workers to have the full benefit of arguments for and against unionization before being irrevocably bound to membership, but that is not how Biden’s NLRB works. Sadly, the current board does not hesitate to dismiss workers’ decertification petitions after they experience buyer’s remorse and broken union promises.

The quest to ban mandatory meetings also hopes to undo decades of precedent and remove the NLRA-protected rights of employers to discuss unions as long as they do not threaten workers. It’s sobering to see such constraints on employer speech in a world where two realities exist: (1) Union salts are increasingly infiltrating businesses to sell much more than they can and will actually deliver; (2) Workers who are disappointed in unions’ shortcomings are often left with no recourse, not even the ability to oust their third-party representation without NLRB foot-dragging.

It’s no wonder we are seeing a trend of businesses questioning whether the NLRB is constitutional and legal challenges against Abruzzo’s mandatory meeting memo. In September 2023, a Michigan federal judge claimed a lack of jurisdiction to review the ban in a lawsuit brought by a construction trade group, which has since appealed to the Sixth Circuit Court of Appeals.

Employers are likewise challenging the state bans on these mandatory meetings. The Minnesota law against mandatory meetings is the subject of a lawsuit from the Associated Builders and Contractors and National Federation of Independent Business (NFIB). The U.S. Chamber of Commerce also joined forces with a coalition for a pending federal lawsuit to challenge the Connecticut law.

Blog Post

A Victory for Employer Rights: Third Circuit Rejects NLRB Claims Against New Concepts for Living

by Michael VanDervort

In a significant ruling by the Third Circuit Court of Appeals, New Concepts for Living Inc. successfully contested the NLRB's finding of unfair labor practices related to efforts to decertify its employees' union. The court found that the NLRB lacked evidence that New Concepts illegally solicited employees to resign from the union, bargained in bad faith, improperly polled its workforce on union support, and wrongly withdrew recognition of the union.

This all started over a decertification effort at New Concepts, a company that provides services for people with disabilities. The company sent a memo to workers in December 2016 about their rights to resign from the union after they failed to reach a successor collective bargaining agreement for two years after the previous deal expired.

The memo was distributed to employees along with a form letter entitled "RESIGNATION/DUES REVOCATION LETTER." The memorandum warned employees:

You have the right to resign from membership in the Union and paying dues at any time, BUT the Union may take the position that you can only revoke your Union Dues payroll deduction authorizations twice a year: -By December 31st and June 30th. If you do not revoke by December 30th, you may be forced to pay Union Dues for another 6 months.

The accompanying form letter was addressed to the Union and stated:

"I resign from membership in CWA Local 1040" and directed the Union to "immediately cease enforcing the dues-checkoff authorization agreement that I signed." The memorandum added that "there is no reward for stopping Union Dues or punishment for continuing to pay Union Dues."

Approximately 90% of the employees signed and returned the form letter to the Respondent. The Respondent then forwarded the completed forms to the Union. On December 31, when Setteducati sent the last form to the Union, his cover letter stated that "this brings the total number of [completed forms] to 80."

The Third Circuit also rejected the NLRB’s argument that New Concepts forfeited arguments by not raising them earlier in the case, giving a view of how some judges view that jurisdictional exhaustion requirement.

The court's decision, underscored by Judge D. Brooks Smith's poignant observation that "almost no one wants to pay something and receive nothing in return," serves as a critical analysis of union representation and worker support. The case revealed that the union's prolonged absence significantly contributed to its declining support among workers, leading employees (and the court) to give a critical examination of union accountability and representation effectiveness.

The court meticulously dissected allegations surrounding the December and August Memos distributed by New Concepts, finding no substantial evidence of coercion or solicitation to resign from the union.

Moreover, the bargaining tactics employed by New Concepts were deemed hard bargaining rather than bad faith, reflecting the challenging dynamics of labor negotiations. Notably, the court validated New Concepts' decision to conduct a poll to ascertain union support, which was crucial in demonstrating a legitimate doubt about the union's majority status due to overwhelming employee disengagement.

The court's flexible approach to procedural requirements suggests a reconsideration of the NLRB's exhaustion requirement for raising arguments. This ruling emphasizes the importance of evidentiary support in NLRB rulings and the potential for legal challenges based on procedural and substantive grounds.

Labor lawyers and labor relations practitioners will find reading this case valuable for its implications on union representation, employer communication strategies, and the legal thresholds for proving bad faith bargaining and coercion.

Blog Post

Higher Education Isn’t Throwing The Books At Unions Yet

by Kimberly Ricci

Although Big Labor would have everyone believe that unions are heading back to their heyday, the reality is that 2023 kept their downward swing alive with another all-time low union density rate. An exception to that rule is higher education, where increased membership claims hold some truth.

Over the past few years, union recruitment in the higher-ed industry has been particularly aggressive, with several unions going poaching. That’s the case for the United Auto Workers (UAW), the United Steelworkers, the United Electrical, Radio and Machine Workers of America, and the Service Employees International Union. Much of their success is due to Gen Z's love for unions, even if they don’t yet understand the realities of living under a union constitution until the sell-out deals hit.

Our main subject today involves colleges in California. Last year saw the UAW’s 45,000 University of California grad-student workers engage in a six-week strike, throwing a semester into disarray with the end result being substantially smaller raises than the union promised. New updates come from a different university, California State, and a few different unions:

In late January, 29,000 of the university’s professors and support staffers began the largest-volume-ever strike, which was meant to last five days but ended after less than a day. Despite a new deal passing, some dissent rose from the rank and file, disappointed that this deal didn’t lead to wages as high as promised.
In late February, 20,000 undergraduate student assistants voted to join the SEIU-affiliated California State University (CSU) Employees Union. The workers are asking for higher wages, more work hours beyond the current 20-per-week limit, paid sick leave, and comped parking. This increases the CSUEU/SEIU local’s membership to 36,000 workers.

The Golden State’s labor laboratory tends to spread its trends elsewhere and fast, so it’s worth taking note of a few recent developments in other states:

In Tennessee, Vanderbilt grad students are gathering UAW authorization cards and hope to unionize by the end of 2024.
In New York, about 1,000 NYU faculty members joined Contract Faculty United – UAW, thereby forming the largest full-time, non-tenure union of U.S. professors. Currently, the UAW has added 100,000 academic workers to its membership rolls.
In Massachusetts, Harvard tutors and proctors filed for a vote to unionize as the Harvard Union of Residential Advisors.

As with Cal State, undergraduate bargaining units are also picking up steam across the U.S., with more developments sure to come. However, this trend is likely to be cyclical.

This past winter, not even The Grinch could stop student workers from hopping onto what Fain was selling. Yet Big Three auto workers are now beginning to call Fain a liar after being laid off due to increased labor costs after last year’s strikes. Dissent has also arisen from UAW members at Temple University after their recently brokered grad-student contract yielded lower-than-fast-food wages.

Gen Z is a particularly observant bunch, so it’s only a matter of time before they realize false union promises are hoodwinking them. Ideally, open communication in the workplace can prevent workers from feeling as though they need to organize in the first place to make their concerns heard.

Blog Post

Under Pressure: When Workplace Violence Becomes A Union Bargaining Chip For The Food-Service Industry

by Kimberly Ricci

Everyone should feel safe in the workplace. Nobody questions this truth. Yet it’s also a sad reality that workers have experienced dangerous situations within many industries. In healthcare, this has led to numerous strikes after patients lashed out at caregivers. In the food service industry, workers are expressing similar safety concerns. If employers do not nip those worries in the bud, then unions are happy to answer the call and use these incidents as organizing leverage.

No employer wants to reach a point where communications with workers have broken down, and they turn to a third party to address their grievances. It’s unquestionably challenging to address all points of vulnerability regarding safety. After all, employers cannot create an isolated, fail-proof bubble while providing services for the public at large. It is far better to address concerns proactively and in a less damaging way than to get a third party like a union involved.

Recently, several SEIU-affiliated unions – Workers United, the California Fast Food Worker Union, and the Union of Southern Service Workers – have become involved with the service industry, as with these examples below:

Starbucks recently and surprisingly reopened negotiations with Workers United after talks between the two parties had broken down six months ago. Starbucks even agreed on a “framework” for the collective bargaining process in late February. This softened stance occurred for several reasons, but safety is undoubtedly on that list, given that workers at many Starbucks cafes have called for improved protocols and training. A few observations:

The company has found itself in a position where the NLRB is attempting to force it to reopen 23 recently closed locations, including some that Starbucks insists were shuttered not because of union organizing activity but due to increased violence, drug overdoses in bathrooms, and other perilous situations in the cafes. That both qualities coexisted is no coincidence in terms of workers taking concerns to unions.
Starbucks CEO Laxman Narasimhan entered the job 18 months ago, and since then, he’s been on clean-up duty. That includes a Supreme Court case over labor disputes, including the alleged illegal firing of union activists belonging to Workers United. That problem is out of his hands, but fostering a safer environment is on the table.

A few other recent examples of unions seizing upon safety concerns:

Subway: Workers in Los Angeles have expressed concerns over drug-related crime, thefts, and violence, including an incident in which an angry customer reportedly wielded a machete while demanding free food. The California Fast Food Worker Union (the SEIU’s newly invented faux union) is now demanding de-escalation training and evacuation planning.

Waffle House: The fledgling Union of Southern Service Workers has not only rallied for $25 per hour for all Waffle House workers but also called for 24/7 security to guard against the notorious, frequently gone-viral instances of violence due to inebriated customers engaging in brawls.

The tough spot: If workplace violence were an easily solved problem, this wouldn’t be such a widespread issue. However, workers are not only asking for results but also want to know that their concerns are being listened to and that they carry weight. If possible, mitigating or solving safety concerns will go miles toward building an extraordinary workplace for all involved.

Blog Post

Stories You May Have Missed:

Dartmouth Men's Basketball Team Votes To Unionize, Shaking Up College Sports

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Toyota Workers At Critical Engine Plant Launch UAW Union Drive

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To Sound Like A Leader, Think About What You Say, And How And When You Say It

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Hadley Trader Joe’s Employees Organize to Decertify Union

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UAW Removes Secretary-Treasurer From Roles Over Alleged Violations

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About Labor Relations INK

Labor Relations INK is published weekly and is edited by Labor Relations Institute, Inc. Feel free to pass this newsletter on to anyone you think might enjoy it. New subscribers can sign up by visiting here.

If you use content from this newsletter, please attribute it to Labor Relations Institute and include our website: http://www.LRIonline.com

Contributing editors for this issue: Greg Kittinger, Michael VanDervort, and Kimberly Ricci.

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About Labor Relations Institute

LRI exists to help our clients thrive and become extraordinary workplaces. We improve the lives of working people by strengthening relationships with their leaders and each other. For over 41 years, LRI has led the labor and employee relations industry, driven by our core values and our proven process, the LRI Way.

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Subject: Bans On Mandatory Meetings About Unionization: Where Does Your State Stand? : LRI INK