Labor experts call for major reform to union election law

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 a 2009 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 47 percent.

Secunda said he thinks the NLRB has 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 NLRB has 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.