In November, the National Labor Relations Board (NLRB) issued two rulings that overturned long-standing precedents. One case outlawed mandatory or so-called "captive audience" meetings by employers, and the other established a new standard for evaluating employee statements on the potential effects of unionization. Both decisions apply only prospectively, not retroactively.
First, in the Siren Retail Corp d/b/a Starbucks case, the NLRB overruled Tri-Cast Inc., a 1985 decision in which it held that statements by employers on the impact of unionization on the employer-employee were mostly lawful. The NLRB rejected the standard in Tri-Cast in favor of a case-by-case evaluation of employer statements based on content and context. Furthermore, the NLRB will now use the standard that the U.S. Supreme Court articulated in NLRB v. Gissel Packing Co. (1969) to potentially threatening or coercive statements by employers. Employers' statements must be based on objective facts and likely consequences outside their control. Any predictions that employers make about unionization that are not based on objective facts and likely consequences or those that suggest employers will take adverse actions toward employees constitute threats of retaliation.
Five days later, the NLRB issued a ruling in Amazon.com Services LLC and Dana Joann Miller and Amazon Labor Union, which concerned captive audiences, or when employers hold mandatory meetings for employees addressing unionization. The NLRB rejected its prior decision in Babcock & Wilcox Co., 77 NLRB 577 (1948), ruling that mandatory employer meetings were inherently coercive in violation of Section 7 of the National Labor Relations Act (NLRA). Workers have the right under Section 7 to form, join, or assist labor organizations and engage in collective bargaining and other concerted activities.
Section 8(c) allows employers to express their views on unionization if their expression is not coercive. For instance, employee meetings at which employers discuss unionization are not coercive so long as the employers follow certain guidelines. Employers cannot force or pressure employees to attend, may not penalize employees for not attending or leaving early, and may not keep attendance records.
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