Bastiaan Slabbers/Sipa USA via AP Images
Union members await a speech by President Biden in Philadelphia, November 1, 2024.
One of the many ways that employers intimidate workers from joining unions is via the captive-audience meeting, in which those workers are subjected to their boss’s arguments against their unionizing. Employers require their workers to attend these meetings; not attending may be, depending on the boss’s mood, grounds for being penalized, demoted, or even discharged.
Last week, the National Labor Relations Board ruled that such meetings violate the National Labor Relations Act, which was designed to give workers a free choice in deciding whether they wished to join a union. By requiring workers’ attendance at such meetings, the Board ruled, those workers’ choice became less free.
Over the past four decades, captive-audience meetings have become standard management practice when workers seek to join a union. They are a prominent feature in the Union Busting 101 courses that anti-union attorneys and consultants provide to their business clients, both big and small. Union organizers have no tool in their arsenal that can match it: Not only can they not compel workers to do anything, but they’re also forbidden from organizing within the worksite. This asymmetry, the NLRB ruled, runs counter to the letter and spirit of the NLRA.
Captive-audience meetings have also come under attack on a different front. During the past two years, ten states have outlawed them. The first was Minnesota, where the ban was enacted in early 2023, shortly after Democrats gained control of both houses of the legislature and Gov. Tim Walz signed it into law. Eight other blue trifecta states quickly followed: California, Connecticut, Hawaii, Illinois, Maine, New York, Oregon, and Washington. And a ban on those meetings was part of an omnibus pro-worker ballot measure (which also included a hike in the minimum wage and the establishment of paid sick leave) that Alaska voters enacted.
Those states, of course, didn’t base their decisions on the NLRA, which is federal law, but more simply on trying to level the playing field between employers and employees. One argument for banning the meetings that I’ve heard from some labor lawyers is that compelling employees to attend those meetings violates workers’ freedom from speech, which is something like the B-side of the First Amendment. As management lawyers take these state laws to court, they’re sure to argue that the NLRA preempts the rights of the states to address this issue. That’s one more reason why last week’s NLRB decision is so important.
That said, the NLRB is the federal agency most subject to reversing its own rulings, depending on who the president is. The Board consists of three members nominated by the president and two by the opposition party, and while members’ terms are staggered, eventually the appointees of the new president outnumber the appointees of the old. That’s why, for instance, a ruling from the Obama-era Board that said that graduate students working at private universities as teaching and research assistants were employees and thus eligible for union membership and collective bargaining was struck down by the Trump-era Board and then reinstated by the Biden Board. In all likelihood, it will be struck down again once the Board is dominated by Trump’s appointees.
What makes this reversal unlike the previous ones is that it’s only in the past couple of years, since the Biden Board gave those grad students the green light, that many thousands of them have organized most of America’s leading private universities. (The NLRA only covers private-sector employees; the 48,000 University of California grad student/employees, for instance, have unionized and won contracts because California state law permits public employees to collectively bargain.) Should the newly unionized private universities (Harvard, Yale, MIT, Caltech, etc.) revoke their grad students’ union recognition and rescind their contracts, it shouldn’t come as a surprise if those students strike and the nation’s foremost universities come to a screeching halt.
How soon could Trump appointees dominate the Board? That may be up to the current lame-duck session of the Senate, which since June has had before it the renomination of Lauren McFerran, who under Biden has been the Board chair. If she is confirmed again, she would be part of the three-member pro-worker Board majority. Until their own majority expires at year’s end, Senate Democrats have pledged to keep ratifying the judicial nominees Biden has put before them, and have come under understandable pressure from labor to confirm McFerran as well. If they do, the next expiration of a pro-worker member’s term won’t come until 2026.
Some Democrats reportedly fear that Trump will simply fire all three Democrats if the Senate reconfirms McFerran, a move that is legally contestable (not that that would deter Trump). Then again, not confirming McFerran would also quickly give the Board over to Trump.
Under McFerran, and with the strong prodding of NLRB General Counsel Jennifer Abruzzo, the Biden Board has been the most committed to ensuring workers’ rights since Franklin Roosevelt’s. It has limited employers’ ability to delay union recognition elections, increased the payments employers must make to employees they illegally fired to deter organizing campaigns, and mandated more significant remedies (including compelling employers to enter collective bargaining with their workers’ union) when employers violate the NLRA in seeking to deter unionization. Eliminating captive-audience meetings is a capstone of sorts to the Board’s campaign to restore to American workers the rights they once enjoyed, before Republicans in the White House, Congress, statehouses, and the courts concluded that worker power was an inherent threat to capital and their campaign contributors. Even if those Republicans now taking power sweep away the Biden Board’s rulings, though, those rulings would be the starting point for the next iteration of worker rights when the Democrats, as they surely will, return to power themselves.
