During union representation campaigns, it is common for employers to advise employees of the downsides posed by union recognition. The current National Labor Relations Board (NLRB) has criticized these tactics, alleging that they unfairly weigh the election process in favor of the company. This month, the NLRB issued two major decisions that if upheld, would severely restrict employers’ ability to communicate their position regarding unionization.

The first decision deals with the common practice of employers advising employees that recognizing the union may result in the loss of their ability to directly resolve work issues with their supervisors. While this appears to be a straightforward factual statement, last week the NLRB held that this type of communication can constitute an unlawful threat under federal labor law.

In this decision, the NLRB majority said that by threatening to remove any existing benefits, categorical statements over the loss of direct management relationships constitute an unfair labor practice. To avoid this characterization, employers would need to provide fact-based and carefully phrased information about the actual change in relations that would result from unionization. In reaching this decision, the NLRB overturned a 40-year-old precedent that recognized employers’ right to advise employees about the general consequences of unionization on labor-management relations.

The second decision involves employers’ ability to hold mandatory or so-called "captive audience" meetings with employees. Typically, employers require employees to attend the meetings to hear management’s position with regard to unionization. In recent years, some states have banned mandatory attendance at these meetings. Earlier this week in Amazon.com Services LLC, the board overruled a 76-year-old precedent, concluding that mandatory meetings interfere with employee rights and coerce employees to follow management’s position on unionization. Employees who ask questions or challenge the company’s position during such meetings provide the company with an unfair informational advantage regarding the sources of union support within the company.

The NLRB said that employers can only call meetings where attendance is fully voluntary, no negative consequences result from non-attendance, and no attendance records are kept. Because the decision overturns existing precedent, the board said that this decision will only operate prospectively. This means that employees and unions cannot file unfair labor practice charges based on previous mandatory meetings.

These decisions will likely face legal challenge both under the NLRA and the First Amendment. With the impending change in administrations, these decisions along with multiple other NLRB precedents from the past several years will likely face challenge and reversal once the new board majority is appointed.

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