On January 15, 2016, more than 100 professors from about 70 universities filed a rulemaking petition with the National Labor Relations Board requesting that the Board adopt a rule providing that where an employer holds “captive audience meetings” to express opposition to unionization, the union has a right upon request to equivalent access to address employees. In other words, unless the employer allows employees to solicit for the union during working time, the union would have the right to have a mandatory, on-the-clock meeting with employees whenever the employer conducts a captive audience meeting to express opposition to a union organizing campaign. Under the proposed rule, if the union loses the election, an employer’s refusal to grant such access will be sufficient grounds to set aside the election.
The professors claim that the petition, filed under the rarely-used NLRB Rule and Regulation § 102.124 allowing any interested person to petition the Board for the “issuance, amendment, or repeal of a rule or regulation,” is designed to counteract the “anti-democratic phenomenon” of captive-audience meetings that they claim destroys the laboratory conditions required for an election. However, the professors note that captive-audience meetings are not objectionable because of the content. Rather, their objection to such meetings is that it denies the union comparable access to the employees. Curiously, the professors cite the Railway Labor Act (RLA) as justification for their proposed rule because the National Mediation Board (NMB), which has jurisdiction over the RLA, prohibits captive audience meetings because it believes that they are “inherently coercive” and thus violate “the ‘laboratory conditions’ required for a fair election.” Yet, the nature of the professors’ proposed rule—to allow everyone to conduct captive audience meetings—is at odds with the NMB’s conclusion.
The full text of the proposed rule is as follows:
Where an employer who is subject to the jurisdiction of the National Labor Relations Act does not specifically allow union solicitation during working time, if that employer—by or through any of its agents, officials, or supervisors—engages in a meeting or meetings with its employees during working time to express opposition to union representation prior to the holding of a Section 9 representation election and refuses to provide the affected union, if requested, with an equivalent opportunity to address employees, such conduct shall be deemed to have impaired the employees’ freedom of choice in the selection of their representative; therefore, if the union loses that election, such conduct shall constitute sufficient grounds for setting aside the results of that election and ordering a new election. The time-period for application of this rule shall begin when the employer first becomes aware that union organizing among its employees is likely to begin or has already begun and shall end on the date on which the representation election is held. This period, however, may be extended to an earlier date, not to exceed six months, if the employer has earlier engaged in any of the above conduct that has had a continuing adverse effect on employees’ free choice and the outcome of the election.
Under the Board’s rules and regulations, the Board has the option of granting or denying the petition with or without a hearing. As the proposed rule is a significant departure from decades of Board precedent and would be a boon to organized labor, it will be interesting to see how the Board addresses this petition in a presidential election year.