March 7, 2024: No Arbitration Deferral for ACLU. Board Dodges Captive Audience Issue.

Babcock & Wilcox survive for now.

The NLRB put out four documents today:

1. American Civil Liberties Union, Inc., 05-CA-300367 (Unpublished Board Decision). The Board determined that the ALJ did not abuse its discretion when it declined to defer to ACLU’s grievance and arbitration procedure to settle a dispute between the ACLU and one of its employees. In most cases, the Board will defer cases to arbitration if the arbitration process was established as part of a collective bargaining agreement (CBA). But here, the arbitration process was not established in a CBA and was instead unilaterally imposed by the ACLU.

2. North Atlantic States Regional Council of Carpenters (SAMAP USA, Corp.), 373 NLRB No. 27, 01-CD-312891 (Published Board Decision). The employer, a construction company, had union contracts with the North Atlantic States Regional Council of Carpenters (NASRCC) and with the International Union of Painters and Allied Trades (IUPAT). These contracts required the employer to use each union’s workers for certain kinds of work done in certain geographical areas. The contracts arguably overlapped in certain respects, creating a dispute between the unions over which of the two the employer must use to staff a hotel construction project in Boston. Under Sections 10(k) and 8(b)(4)(D), the Board settles this kind of jurisdictional dispute provided there is no agreed-upon method for voluntary adjustment of the dispute and one of the two unions uses a proscribed method to attempt to enforce is claim over the work. These two requirements were met here — there was no agreement for resolving these disputes and NARSCC threatened to pull its other workers from the job if it did not get assigned the work. The Board looked at five factors — Board certifications and CBAs, employer’s preference and current assignment, economy and efficiency of operations, area and industry of practice, and relative sills and training — to determine that NARSCC should be assigned the work, not IUPAT.

3. Valladares Landscaping Artists, 373 NLRB No. 29, 15-CA-306672 (Published Board Decision). The General Counsel (GC) issued a complaint and notice of hearing on July 27. By rule, the employer should have filed an answer by August 10, but it did not. On August 14, the GC sent a letter to to the employer notifying it that it had failed to meet the deadline and that it must file an answer by August 21 or that the GC would file a motion for default judgment. On August 18, the employer, without legal counsel, submitted a letter explaining why it had failed to file a timely answer and denying some of the charges against it. This letter was not an answer in a formal sense and so the GC filed a motion for default judgment. The Board rejected this motion because the letter does answer the charges to some extent and because of the Board’s general posture of leniency towards unrepresented parties.

4. Starbucks Corporation, 373 NLRB No. 33, 31-CA-299257 (Published Board Decision). In response to a unionization drive, a manager for the employer held a one-on-one captive audience meeting with an employee. In that meeting, the manager told the employee that, during the unionization drive, “their benefits would be put on hold and that she did not know if employees would receive a raise the other stores were going to receive,” “that the bargaining process had backfired on unionized employees in a Canadian store because they were paid less than nonunionized stores,” and that “she wished she knew who started the union campaign.” The Board agreed with the ALJ that the first two statements amount to threats of adverse action for organizing and unionizing and violate Section 8(a)(1). The Board also agreed that the third statement was unlawful interrogation about union activity. The Board ordered the employer to cease and desist from unlawful threats and interrogation and to post a notice.

The GC was attempting to use Starbucks Corporation as a vehicle for getting the Board to find that captive-audience meetings are unfair labor practices in and of themselves, regardless of whether the employer uses them to unlawfully threaten or interrogate employees.

In Clark Bros., decided in 1946, the Board held that, by requiring its employees to hear anti-union speeches during working hours, the employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA).

In 1947, the Taft-Hartley Act passed, which added Section 8(c) to the NLRA:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

In Babcock and Wilcox, decided in 1948, the Board cited this new Section 8(c) as the basis for finding that captive-audience meetings no longer violated the NLRA.

In a 2022 memo (GC 22-04), GC Abruzzo indicated her belief that captive-audience meetings are illegal under the NLRA and that Babcock and Wilcox was wrongly decided:

Over 75 years ago, the Board recognized that the Act protects employees’ right to listen as well as their right to refrain from listening to employer speech concerning the exercise of their Section 7 rights. Forcing employees to listen to such employer speech under threat of discipline—directly leveraging the employees’ dependence on their jobs—plainly chills employees’ protected right to refrain from listening to this speech in violation of Section 8(a)(1).

[…]

I will urge the Board to correct that anomaly and hold that, in two circumstances, employees will understand their presence and attention to employer speech concerning their exercise of Section 7 rights to be required: when employees are (1) forced to convene on paid time or (2) cornered by management while performing their job duties. In both cases, employees constitute a captive audience deprived of their statutory right to refrain, and instead are compelled to listen by threat of discipline, discharge, or other reprisal—a threat that employees will reasonably perceive even if it is not stated explicitly.

The Board in Starbucks Corporation declined to use the case as a vehicle for overruling Babcock & Wilcox but did tease that it is “open to reconsidering the matter in a future appropriate case.”