A new memo from the National Labor Relations Board (NLRB) general counsel (GC) represents a continuation of efforts to promote unionization, according to attorneys who help guide employers through union campaigns.
NLRB GC Jennifer Abruzzo on April 27 announced an initiative aimed at promoting collective bargaining through partnering with the Federal Mediation and Conciliation Service (FMCS). The initiative encourages unions and employers to use the FMCS services, “including mediation, training, and card counts to show majority support,” the announcement says.
‘Significant Resistance’ Expected
Abruzzo’s move encouraging unions and employers to use the FMCS “is not remarkable on its own,” according to Michael J. Underwood, an attorney with Porter Wright Morris & Arthur LLP in Columbus, Ohio. However, “it is significant that it calls out card check recognition as a desirable means for establishing representation rights.”
The announcement seems to address only employers that have chosen voluntarily to agree to card checks, Underwood says. “Any effort to require card check recognition will be strongly resisted by the employer community because most businesses hold firmly that the only fair means to determine employee wishes on unionization is by a secret-ballot election.”
The significance of Abruzzo’s latest announcement is that it’s consistent with a series of actions in recent weeks “signaling a move to actively support unionization efforts,” Underwood says.
Those actions include Abruzzo’s April 7 announcement that she would ask the NLRB to find mandatory “captive audience” meetings—sessions in which employees are required to listen to the employer’s side during a union campaign—a violation of the National Labor Relations Act. The GC also has signaled interest in card check recognition “unless the employer can establish that the cards are not a genuine reflection of employee sentiments,” Underwood says.
“If those initiatives are pushed by the NLRB, I expect significant resistance in the business community,” Underwood says.
Burton J. Fishman, an attorney with FortneyScott in Washington, D.C., says Abruzzo’s announcement isn’t anything of “meaningful substance” and is instead more of a public relations activity in support of the February release of the White House Task Force on Worker Organizing and Empowerment Report.
Fishman says Abruzzo “is taking increasingly aggressive positions in support of unions.” In addition to the “captive audience” speech prohibition, she has come out in support of issuing bargaining orders—compelled recognition of unions—as a remedy for alleged election unfair labor practices.
‘Dose of Reality’ Needed
Jeffrey Sloan, an attorney with Sloan Sakai Yeung & Wong LLP in San Francisco, California, notes that since the beginning of the Biden administration, the NLRB has moved aggressively in the opposite direction from the previous administration.
Regarding the announcement promoting the use of the FCMS, Sloan says “it’s hard to argue against voluntary training—especially for newly unionized workplaces.”
“The local teams that unions use in bargaining toward first contracts are typically inexperienced and often have wildly unreasonable expectations about what they can get in bargaining,” Sloan says. “A good mediator can give a dose of reality, rather than encouragement.”
The card count reference in Abruzzo’s announcement “obscures a fundamentally important issue,” Sloan says. “Card check is any union’s preferred alternative to a secret-ballot election. It is fraught with problems, starting with the fact that union organizers often mislead employees into signing authorization cards, and unions can achieve majority status through misrepresentation and even fraud.”
Also, the NLRB is pushing for expedited elections, which Sloan says reduce the argument that card check is necessary to avoid employer abuses.
“I see Abruzzo’s casual reference to card counts as being akin to the camel’s nose approaching the tent,” Sloan says. “Formally installing card check would require an amendment to the NLRA,” which isn’t likely to attract enough votes in Congress to overcome a filibuster.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.