Labor experts call for major reform to union elec­tion law

Jan­u­ary 15, 2016 2:20PM ET

by Ned Resnikoff

When a man­ager wants to quash a union drive, one of the most effec­tive tools to do that is the “cap­tive audi­ence” meet­ing — that is, a meet­ing held on com­pany prop­erty dur­ing reg­u­lar work­ing hours, with com­pul­sory atten­dance by all employ­ees. A cap­tive audi­ence meet­ing can be an oppor­tu­nity for man­age­ment or anti-​union con­sul­tants to cajole, per­suade and some­times sub­tly threaten work­ers into reject­ing unionization.

With­out the abil­ity to call their own staff-​wide meet­ings on com­pany prop­erty, unions have lit­tle to counter the cap­tive audi­ence tac­tic. But that may soon change if some of America’s lead­ing labor law experts have their way.

On Fri­day, 106 labor schol­ars — includ­ing law pro­fes­sors, his­to­ri­ans and indus­trial rela­tions experts from uni­ver­si­ties across the coun­try — filed a peti­tion with the National Labor Rela­tions Board (NLRB) ask­ing the admin­is­tra­tive body to reform reg­u­la­tions around cap­tive audi­ence meet­ings. Under their pro­posed rule, employ­ers would be penal­ized if they held cap­tive audi­ence meet­ings with­out giv­ing the union “an equiv­a­lent oppor­tu­nity to address employ­ees,” accord­ing to the petition.

If an employer fails to pro­vide equal time to the union dur­ing an orga­niz­ing drive, and the union sub­se­quently failed to secure a major­ity vote, the NLRB would have grounds to inval­i­date the results and call for a new election.

Mar­quette Uni­ver­sity labor law pro­fes­sor Paul Secunda, the pri­mary co-​petitioner, says that he doesn’t see this as a rad­i­cal pro-​union posi­tion. “It’s just about say­ing that in order to have a fair elec­tion, employ­ees need to have infor­ma­tion from both sides of the debate in order to make an informed choice,” said Secunda. “I think that’s pretty uncontroversial.”

Unions had no involve­ment in the deci­sion to file the peti­tion or its draft­ing, accord­ing to petitioners.

In the first few years fol­low­ing the pas­sage of the 1935 National Labor Rela­tions Act, the NLRB found cap­tive audi­ence meet­ings to be a vio­la­tion of that statute. But the board reversed its posi­tion in 1953; when it revis­ited the ques­tion of whether to reg­u­late cap­tive audi­ence meet­ings 13 years later in a sep­a­rate dis­pute, it left open the pos­si­bil­ity that it would set a new prece­dent — but never did so.

Since then, the meet­ings have become a fre­quently used anti-​union weapon. Between 1999 and 2003, cap­tive audi­ence meet­ings were held in almost nine out of ten union­iza­tion cam­paigns, accord­ing to a2009 Eco­nomic Pol­icy Insti­tute study writ­ten by Cor­nell Uni­ver­sity labor scholar Kate Bron­febren­ner, one of the sig­na­to­ries to Friday’s peti­tion. Unions won 73 per­cent of the cam­paigns in which employ­ers did make use of the tac­tic, Bron­febren­ner found. Where bosses did hold cap­tive audi­ence meet­ings, the win rate for unions dropped to 47percent.

Secunda said he thinks the NLRBhas a “decent chance” of adopt­ing the peti­tion­ers’ recommendation.

“There’s three mem­bers on the [typ­i­cally five-​member] board who believe that the cur­rent elec­tion process is not com­pletely unfair, and kind of tilted toward the employer,” said Secunda.

Increas­ing the odds in the peti­tion­ers’ favor is the fact that the NLRBhas spent the past two years issu­ing a flurry of union-​friendly deci­sions and reg­u­la­tions. But Demo­c­ra­tic mem­ber Kent Y. Hirozawa’s term is set to expire in August, leav­ing two vacan­cies and only two Democ­rats left on the board. It is unlikely that either Hirozawa or Repub­li­can Harry I. John­son, III, whose term expired in August 2015, will be replaced under this president.