Today, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all Field offices announcing that she will ask the Board to find mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, including captive audience meetings, a violation of the National Labor Relations Act (NLRA).
General Counsel Abruzzo explains that the Board has long-recognized that the Act protects employees’ right to listen to—or refrain from listening to—employer speech concerning their rights to act collectively to improve their workplace. Forcing employees to attend captive audience meetings under threat of discipline discourages employees from exercising their right to refrain from listening to this speech and is therefore inconsistent with the NLRA.
The memo explains that years ago the Board incorrectly concluded that an employer does not violate the Act by compelling its employees to attend meetings in which it makes speeches urging them to reject union representation. As a result, employers commonly use explicit or implied threats to force employees into meetings about unionization or other statutorily protected activity.
“This license to coerce is an anomaly in labor law, inconsistent with the Act’s protection of employees’ free choice. It is based on a fundamental misunderstanding of employers’ speech rights,” said General Counsel Jennifer Abruzzo. “I believe that the NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language, and our Congressional mandate. Because of this, I plan to urge the Board to reconsider such precedent and find mandatory meetings of this sort unlawful.”
The General Counsel states that she will urge the Board to correct that anomaly and propose they adopt sensible assurances that an employer must convey to employees in order to make clear that their attendance at these meetings is truly voluntary. Such an approach will appropriately protect employers’ free-speech rights to express views, arguments, or opinions concerning the employees’ exercise of their protected labor rights without unduly infringing on the rights of employees to refrain, or not, from listening to such expressions.
Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.
Labor Day: What it Means Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity, and well-being of our country.
Labor Day Legislation Through the years the nation gave increasing emphasis to Labor Day. The first governmental recognition came through municipal ordinances passed during 1885 and 1886. From these, a movement developed to secure state legislation. The first state bill was introduced into the New York legislature, but the first to become law was passed by Oregon on February 21, 1887. During the year four more states — Colorado, Massachusetts, New Jersey, and New York — created the Labor Day holiday by legislative enactment. By the end of the decade Connecticut, Nebraska, and Pennsylvania had followed suit. By 1894, 23 other states had adopted the holiday in honor of workers, and on June 28 of that year, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.
More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.
Some records show that Peter J. McGuire, general secretary of the Brotherhood of Carpenters and Joiners and a cofounder of the American Federation of Labor, was first in suggesting a day to honor those “who from rude nature have delved and carved all the grandeur we behold.”
But Peter McGuire’s place in Labor Day history has not gone unchallenged. Many believe that Matthew Maguire, a machinist, not Peter McGuire, founded the holiday. Recent research seems to support the contention that Matthew Maguire, later the secretary of Local 344 of the International Association of Machinists in Paterson, N.J., proposed the holiday in 1882 while serving as secretary of the Central Labor Union in New York. What is clear is that the Central Labor Union adopted a Labor Day proposal and appointed a committee to plan a demonstration and picnic.
The First Labor Day
The first Labor Day holiday was celebrated on Tuesday, September 5, 1882, in New York City, in accordance with the plans of the Central Labor Union. The Central Labor Union held its second Labor Day holiday just a year later, on September 5, 1883.
In 1884 the first Monday in September was selected as the holiday, as originally proposed, and the Central Labor Union urged similar organizations in other cities to follow the example of New York and celebrate a “workingmen’s holiday” on that date. The idea spread with the growth of labor organizations, and in 1885 Labor Day was celebrated in many industrial centers of the country.
The form that the observance and celebration of Labor Day should take was outlined in the first proposal of the holiday — a street parade to exhibit to the public “the strength and esprit de corps of the trade and labor organizations” of the community, followed by a festival for the recreation and amusement of the workers and their families. This became the pattern for the celebrations of Labor Day. Speeches by prominent men and women were introduced later, as more emphasis was placed upon the economic and civic significance of the holiday. Still later, by a resolution of the American Federation of Labor convention of 1909, the Sunday preceding Labor Day was adopted as Labor Sunday and dedicated to the spiritual and educational aspects of the labor movement.
The character of the Labor Day celebration has undergone a change in recent years, especially in large industrial centers where mass displays and huge parades have proved a problem. This change, however, is more a shift in emphasis and medium of expression. Labor Day addresses by leading union officials, industrialists, educators, clerics and government officials are given wide coverage in newspapers, radio, and television.
The vital force of labor added materially to the highest standard of living and the greatest production the world has ever known and has brought us closer to the realization of our traditional ideals of economic and political democracy. It is appropriate, therefore, that the nation pay tribute on Labor Day to the creator of so much of the nation’s strength, freedom, and leadership — the American worker.
THE GUARDS TRILOGY: THE NLRB LOWERS THE GUARD ON EMPLOYEE RIGHTS
Private security guards have demonstrated a growing interest in union representation’ in an attempt to address the problem of low pay scales in the industrial security industry. Employers have often argued against guards’ unionization because of the possible incompatibility of the guards’ employment responsibilities with their union loyalties during strike situations. Although the National Labor Relations Act (NLRA or Act) authorizes security guards to unionize legally, the Act contains some restrictions to avoid possible conflicts of loyalty. Recently, in a trilogy of cases, the National Labor Relations Board (NLRB or Board) has limited guards’ rights to choose freely and maintain their bargaining representatives. These restrictions on guards’ rights places employees’ rights, provided for in the NLRA, in a secondary position to the employer’s right to be free from employee conflicts of loyalties, also provided for in the Act. The NLRA grants guards the right to unionize free from employer interference. Section 7 of the Act guarantees guards the right to choose freely a union representative who is authorized to bargain with the employer. The union representative election procedures are set forth in section 9 of the NLRA.’ The procedure includes a secret ballot election of guards within a collective bargaining unit as well as NLRB certification of the guards’ union after the election process.”
Congress responded to employers’ concern about the potential problem of unionized guards’ divided loyalties between the employers and the unions when it drafted the Taft-Hartley Act of 1947. Section 9(b)(3) of the NLRA is Congress’ response to the problem of guards’ potential conflict of loyalties. Section 9(b)(3) has two parts. The first prohibits the NLRB from placing guard and nonguard employees together in a collective bargaining unit. The second prohibits the NLRB from certifying a guard union as the guards’ bargaining representative if the union also represents nonguards or is affiliated with a nonguard union. In the past, the Board generally recognized guards’ rights under section 7 of the NLRA to bargain through the representative of their choice, even if section 9(b)(3) barred NLRB certification of a union representing security guards. Recently, in a trilogy of decisions, however, a divided Board reversed its policy of permitting the use of guard-nonguard unions as the guards’ bargaining agent. In Wells Fargo Armored Service Corporation, the NLRB held that an employer’s withdrawal of voluntary recognition from a noncertified guardnonguard union during an economic strike did not violate the Act. Shortly thereafter in University of Chicago, the Board ruled that section 9(b)(3) prevented the NLRB from allowing a union whose membership includes nonguards as well as guards to take part in a Board-conducted representative election for a bargaining unit of security guards. In Brink’s, Inc. the Board announced that it cannot consider a unit clarification petition that a guard-nonguard union files because unions that the NLRB cannot certify under section 9(b)(3) should not use the NLRB’s processes to clarify the scope of their unit’s composition.