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union busting
US Labor Board Bans Captive Audience Meetings to Ensure 'Truly Free' Worker Choice
"Today's decision better protects workers' freedom to make their own choices in exercising their rights," said the chair of the National Labor Relations Board.
Nov 13, 2024
In a decision that advocates say will likely be reversed during the second administration of Republican U.S. President-elect Donald Trump, the National Labor Relations Board on Wednesday ruled that employers cannot force workers to attend anti-union speeches.
The NLRB's 3-1 decision in Amazon.com Services, LLCmeans that workers will no longer have to take part in so-called "captive audience meetings," which employers often use as a union-busting tool and a form of coercion. The agency explained that such meetings violate Section 7 of the National Labor Relations Act "because they have a reasonable tendency to interfere with and coerce employees."
"However, the board made clear that an employer may lawfully hold meetings with workers to express its views on unionization so long as workers are provided reasonable advance notice of: the subject of any such meeting, that attendance is voluntary with no adverse consequences for failure to attend, and that no attendance records of the meeting will be kept," the NLRB added.
NLRB Chairperson Lauren McFerran, a Democrat, said in a statement that "ensuring that workers can make a truly free choice about whether they want union representation is one of the fundamental goals of the National Labor Relations Act."
"Captive audience meetings—which give employers near-unfettered freedom to force their message about unionization on workers under threat of discipline or discharge—undermine this important goal," McFerran added. "Today's decision better protects workers' freedom to make their own choices in exercising their rights under the act, while ensuring that employers can convey their views about unionization in a noncoercive manner."
In April 2022, the NLRB's general counsel office issued a memo asserting that captive audience meetings are illegal. At least 11 states have banned such meetings. Other states are in various stages of considering or enacting bans or restrictions on them.
Workers' rights advocates hailed Wednesday's decision, although labor journalist Hamilton Nolan quipped on social media that employees should "enjoy this brief shining period before the Trump NLRB reverses this decision."
However, More Perfect Union producer Jordan Zakarin argued that Democrats can protect this "monumental win for labor" for "the next few years" if "they finally confirm" President Joe Biden's nomination of Joshua Ditelberg—a Republican lawyer who has represented companies including Amazon, Airbnb, and UnitedHealth—to fill the fifth NLRB seat.
According to the Economic Policy Institute (EPI)—a Washington, D.C.-based, pro-union think tank—U.S. employers spend an estimated $433 million per year on union-busting consultants.
"This reality makes it harder for workers to fight for their collective bargaining rights because they do not know the extent of their companies' investments in union-busting, a figure that could empower them at the negotiating table when employers claim they can't afford to increase pay and benefits," EPI said last year.
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Behind the Supreme Court's Anti-Union Gift to Starbucks
Another kick in the face to workers by the nation's highest court shows why this year's election is so vital and a working class movement is needed more than ever.
Jun 14, 2024
The far-right domination of the U.S. Supreme Court has rightly drawn public scorn and outrage over its draconian rulings on reproductive health, voting rights, and gun laws as well as other extremist decisions. Their repeated handouts to corporate interests—from public regulatory protections to worker and union rights—must also be viewed in tandem with the threat to democracy and the public interest.
Its ruling Thursday on behalf of Starbucks, overturning an injunction to reinstate seven Memphis Starbucks workers fired for union organizing in 2022, marks another step to erode hard won labor law protections for unions and workers.
As the New York Times reported, workers, who called themselves the "Memphis Seven," said that they were fired for their unionization efforts and that the company didn’t typically enforce the rules they were accused of violating. The National Labor Relations Board found that Starbucks had violated federal law by engaging in protected “concerted activity” which led to a federal judge ordering their restitution.
In response, AFL-CIO President Liz Shuler rightly noted the court had “sided with corporate power… in a direct attack on the fundamental freedom to organize a union on the job. The NLRB exists to resolve labor disputes and ensure workers can exercise our right to join a union, free from intimidation and retaliation. The board obtained an injunction in federal district court to reinstate the Memphis Seven while deciding the case. The system worked as it is supposed to—until the Supreme Court got involved.”
The court "sided with corporate power… in a direct attack on the fundamental freedom to organize a union on the job."
Similarly, Starbucks Workers United President Lynne Fox noted that “working people have so few tools to protect and defend themselves when their employers break the law. That makes today’s ruling by the Supreme Court particularly egregious. It underscores how the economy is rigged against working people all the way up to the Supreme Court.” Starbucks workers, Fox added, “are continuing to organize…Workers’ momentum is unstoppable and they will not let the Supreme Court slow them down.”
In its decision, the Court majority held that the NLRB was imposing a stricter standard than other agencies requiring a finding of “irreparable harm” for a preliminary injunction, not just “reasonable cause” that that the case would ultimately be won.
Section 10(j) of federal labor law was added under the infamous 1947 Taft-Hartley Act as an amendment to the1935 National Labor (Wagner) Act while implementing multiple impediments to undermine the 1935 NLRA. It permits the National Labor Relations Board (NLRB) to seek an injunction to prevent irreparable harm while the NLRB’s administrative processes determines whether a violation has occurred. But there was also a consequence of a lengthy legal process for workers seeking justice while battling intransigent employers.
The Court decision was 8–1, with a dissenting concurrence by Justice Ketanji Brown Jackson. She accepts the majority position that a “regulatory enactment” must meet a “clear and valid legislative command” for “equity relief” in ascertaining “congressional intent” of the Taft-Hartley statute for issuing an injunction. But in a textbook analysis, Jackson rightly explains what is so fundamentally wrong with the ruling.
“To put it bluntly,” Justice Jackson writes, “courts exercising their equitable discretion amidst labor disputes today do so against the backdrop of an ignominious history of abuse.” The NLRA she notes, was directly enacted to “eliminate the causes of certain substantial obstructions to the free flow of commerce” by protecting workers’ rights, codifying the right of workers to form and join unions, collectively bargain, and to strike. It’s a valuable reminder.
To address rampant employer abuses against those rights, Congress did not “leave it up to the courts” to protect those rights, but specifically “created an expert agency, the (NLRB) to investigate, adjudicate, and stop unfair labor practices.” However, “delay in vindicating labor rights during the ‘notoriously glacial’ course of NLRB proceedings can lead to their defeat.”
In the Starbucks case, the employer fired members of the organizing committee in February 2022, “just as a campaign for unionization was building momentum,” and the case remains pending “now more than two years later.” It was precisely “to respond to situations such as this one,” says Jackson, that Congress “gave the Board specific power to seek preliminary injunctive relief” with a 10(j) preliminary injunction.
And, she adds, “there is broad consensus about why Congress allowed the Board to seek §10(j) injunctions.” The Senate Report on Taft-Hartley stated:
“Time is usually of the essence in [labor disputes], and consequently the relatively slow procedure of Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives — the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining. Hence we have provided that the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices.”
In fact, 10(j) injunctions are exceedingly rare, as Jackson adds. Of some 20,000 unfair labor practice charges filed last year, the NLRB only sought a 10(j) injunction 14 times. In contrast to the majority decision arguing a 10(j) should only be issued when there is conclusive evidence the union will ultimately prevail in the final decision, Jackson concludes, that “means that, by the time the district court gets a (rare) §10(j) request, the Board has already deemed an unfair labor charge likely meritorious, and has determined that preservation of the status quo is needed to facilitate its own likely judgment.”
The current Supreme Court and judges appointed by Trump in his first term, and his commitment to appoint many more if he wins again. It is an important reminder of why the presidential election in November is critical for worker’s rights.
Historically, the “irreparable harm” is more often to a union’s campaign to win a fair collective bargaining agreement more than just re-instating workers fired for union organizing. Employers know full well they can exploit the delays baked into what Jackson calls the “glacial” legal hurdles allowing them to stall, delay, and sabotage bargaining for years even after a union has won an organizing election in the face of massive union busting by employers and the millions of dollars they spend on anti-union campaigns.
For decades under every Republican president, the NLRB has been stacked with management attorneys who protect corporate interest not workers and their ability to form unions to improve their lives and their workplace conditions. The current NLRB, with a pro-worker, pro-union majority appointed by President Biden reversed that trend, replacing the hostile management attorneys appointed by ex-President Trump.
That’s why the Washington Post reports, “legal experts say the decision could have a chilling effect on union drives during a period of heightened labor activism.” Further, the decision could fuel an increasing reluctance of NLRB Regions to even consider efforts to seek 10(j) relief, thus effectively chilling the exercise of rights purportedly guaranteed by the NLRA.
Rutgers University labor law professor James Cooney tells the Post, “this could hurt unions from obtaining relief through the board, particularly if you have a district court judge who doesn’t know labor law or quite frankly is a real conservative and is going to always back the business.”
In other words, the current Supreme Court and judges appointed by Trump in his first term, and his commitment to appoint many more if he wins again. It is an important reminder of why the presidential election in November is critical for worker’s rights, and why real legislation, such as the Protecting the Right to Organize (PRO Act) bill, is essential to redress the injustices of decades of anti-union neoliberal policies.
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Alabama Mercedes-Benz Workers Accuse Company of Union-Busting in NLRB Complaint
"It's just plain retaliation from Mercedes, but I'm not going to be intimidated," said one worker.
Mar 26, 2024
A month after the United Auto Workers announced that a majority of workers at the Mercedes-Benz plant in Vance, Alabama had signed union cards, employees struck a defiant tone Tuesday as they filed official complaints of union-busting by the company with the National Labor Relations Board.
Workers detailed the illegal disciplinary measures management has taken against them for taking leave and objecting to anti-union materials that have been shown in captive-audience meetings since most of the plant's 6,000 workers indicated they want to join the UAW.
"Since we started organizing, I put in my [Family and Medical Leave Act] leave with management multiple times and every time they said they lost the paperwork," Lakeisha Carter, who works in the company's battery plant, told the UAW. "It's just plain retaliation from Mercedes, but I'm not going to be intimidated."
The U.S. Department of Labor last month recovered $438,625 in back pay, unpaid bonuses, and damages for two people who had formerly worked at the plant in Vance, finding that management had illegally fired the workers when they requested FMLA-protected leave to care for a family member and recover from a serious health condition.
After winning new contracts for workers at the Big 3 automakers last fall following an historic "stand-up strike," the UAW has launched campaigns at non-unionized plants owned by Mercedes, Volkswagen, Hyundai, and Toyota, convincing more than 10,000 autoworkers so far to sign union cards.
Another battery plant worker, Taylor Snipes, told the UAW that managers at the company were forcing him and his coworkers "to attend meetings and watch anti-union videos that are full of lies."
After he objected, Snipes was called into a meeting and "immediately fired for having his phone on the factory floor," even though he had been given permission to have his phone with him so he could be in touch with his child's daycare center.
"I told management that it was suspicious that I was being called into the office on the same day that I spoke up in anti-union meeting," said Snipes. "My manager said the two had nothing to do with one another, but then proceeded to aggressively interrogate me about why I support having a union."
UAW President Shawn Fain met with Mercedes workers in Alabama on Sunday.
"Unlike previous drives, the workers are in command," said Luis Feliz Leon of Labor Notes. "They are the collective force that will either press on to a union victory or a defeat."
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