- The recent NLRB decision finding that mandatory employer meetings involving unionization discussions are unlawful includes other points that will affect employers.
- Board majority seems to have narrowed the circumstances under which an employer may publicize existing benefits and rely on “past practice” to solicit employee grievances during a union campaign.
- Decision adds to the rapidly growing list of employer statements the majority believes constitute an unlawful threat.
In Amazon.com Services LLC, 373 NLRB No. 136 (2024), a majority of the National Labor Relations Board overruled Babcock & Wilcox and 76 years of precedent protecting the statutory and First Amendment right of employers to hold mandatory employee meetings to discuss unions and unionization. But the majority’s decision involves other issues employers should not overlook, including: (1) the majority’s apparent narrowing of the circumstances under which an employer may publicize existing benefits and rely on “past practice” to solicit employee grievances during a union campaign; and (2) an addition to the rapidly growing list of employer statements the majority believes constitute an unlawful threat.
Brief Background
According to the written decision: In 2021, the Amazon Labor Union began organizing two storage and fulfillment locations on Staten Island. The employer held informational meetings with employees where the organizing and election process was discussed, along with the company’s view that unions were not necessary. Among other things, the employer discussed its “Open Door” Policy and other direct communication avenues employees benefitted from, including digital message boards where employees could post messages for review by and responses from management and other employees. The employer encouraged employees to use these existing communication channels to escalate concerns that employees believed were not being addressed to their satisfaction.
During the organizing effort, some employees left messages on digital message boards supporting the union, which violated the employer’s lawful no-solicitation policy. These employees were told they would not be disciplined for the postings but were allegedly also told that further posts in violation of the policy would lead to “additional follow up.”
NLRB Majority Takes Aim at Solicitation of Grievances
An employer may publicize existing benefits during a union organizational campaign, even those employees may be unaware of or seldom use. Unless coupled with an unlawful threat or promise of additional benefits, such speech is protected by Section 8(c) of NLRA and the First Amendment.1
The solicitation of employee grievances during a union organizing campaign can improperly imply that an employer is promising to remedy the grievance to discourage union support. But the NLRB and courts have long held that “an employer with a past practice of soliciting employee grievances through an open door or similar-type policy may continue such a policy during a union’s organizational campaign.”2
Notwithstanding these bedrock principles of labor law, the NLRB majority held that the employer unlawfully solicited employee grievances when managers and supervisors touted the company’s Open Door Policy and various methods of employee direct communication with leadership. The majority acknowledged these communication channels were in place before union organizing started but concluded their existence pre-organizing “signifies little.” Instead, the majority held that the employer violated the NLRA because it “emphatically” urged employees to use these systems until they got a resolution—which the majority considered a change from prior practice.
NLRB Majority Finds an Unlawful Threat
The majority also addressed claims that the employer violated the NLRA when managers allegedly told employees there would be “follow up” should they create more pro-union posts on its message boards. The majority held that a promise of “follow up” from a manager to an employee about such activity could be reasonably construed by an employee to be a reference to discipline or reprisals – and not merely “superfluous education” or another simple conversation regarding the posts.
Another First Amendment Fight Looming?
Dissenting Member Kaplan took issue with the majority’s determination that the company’s statements about its existing Open Door Policy and communication channels amounted to unlawful speech. Member Kaplan noted that employers are entitled to campaign against representation by touting existing benefits and encouraging their use. He would have found the statements at issue lawful under Section 8(c) and existing Board law.3
Coming Attractions
Nobody knows what existing precedent the current Board majority may focus on next. But the majority’s decision foreshadows in a footnote its willingness to reconsider its Register Guard standard.4 Register Guard allows employers to maintain and enforce non-discriminatory rules that prohibit the use of its property, including electronic communication systems, for the promotion/discussion of non-work activities.
Takeaways for Employers
While President-elect Trump is expected to replace the current NLRB general counsel, the Biden NLRB majority may remain largely intact until 2026. With Cemex continuing to make its way through the appellate process, it is important for employers to be aware of and account for new precedent in their legal risk management and employee engagement training efforts.
Modern Labor Compliance Guardrails
Standard NLRA compliance training may not be enough for some employers. The last 24 months of NLRB and NLRB ALJ decisions:
- Expose trends where a more targeted and comprehensive approach to training may be appropriate.
- Highlight the importance of auditing and addressing holes in the consistency of enforcement of non-solicitation, e-communication, disciplinary, and other policies, including additional training on this topic with HR, Labor Relations, managers and supervisors.
- Provide opportunities to review and update employee communications used during organizing.
- Require an evaluation of existing feedback channels (or addition of new ones) to ensure employees are aware of and using them to address their concerns.
A Look Ahead
Stay tuned. An appeal of the majority’s decision in Amazon.com may broadly challenge whether the majority’s approach to employer speech in recent cases is contrary to the plain terms of Section 8(c) and modern First Amendment jurisprudence, including whether the NLRB’s purely objective threat test is at odds with recent Supreme Court decisions holding that purely objective threat tests violate the First Amendment. We will continue to update you on this and other significant issues facing employers.
Footnotes
1 See e.g., Ideal Macaroni Co., 301 NLRB 507, 507 (1991).
2 Kingsboro Medical Group, 270 NLRB 962, 963 (1984), enfd. 400 F.3d 1093 (8th Cir. 2005).
3 Member Kaplan also would have found that the alleged “follow up” statement, considered in context, was too vague to be considered an unlawful threat.
4 351 NLRB 1110 (2007) enfd. Guard Publishing v. NLRB, 571 F. 3d 53 (D.C. Cir. 2009).
