Vice President, Labor Policy, U.S. Chamber of Commerce
September 25, 2020
During his tenure at the National Labor Relations Board (NLRB), General Counsel Peter Robb has made a point of addressing many of the lopsided policies of his predecessors from the Obama administration, of which there were many. In addition to that full-time project, Robb—like his predecessors—has also issued guidance memos instructing his staff to report cases involving issues of particular interest to him for further consideration. One such memo earlier this month reiterates that he continues to evaluate the role of employers in organizing campaigns, and that could have important implications for employers and unions alike.
As Robb’s memo notes, the agency’s regional offices “have sought advice on a series of issues relating to the amount of lawful support an employer can provide a union that is attempting to organize its employees.” Among those issues are so-called “neutrality agreements” that unions often seek from employers during organizing campaigns.
By signing a neutrality agreement, an employer essentially promises not to take a stance on unionization with its employees. That allows union representatives to present one side—the union’s—to those employees as they weigh the pros and cons of having a union represent them. In addition to remaining silent, employers often will turn over information about their employees to the union and allow access to work locations to talk to them, among other things.
As one might imagine, such organizing assistance is of great value to a union seeking to represent employees because it removes much of the resistance that otherwise might exist, thereby making an organizing drive more likely to succeed. So valuable is this assistance, in fact, that an employer’s failure to sign a neutrality agreement can lead to nasty public campaigns designed to seriously damage, if not destroy, an employer’s business. In some of the most egregious situations in the past, labor unions have lost or settled lawsuits filed by employers that have endured unyielding harassment in the pursuit of neutrality agreements.
This issue has not escaped judicial notice, and even the Supreme Court heard arguments about the legality of neutrality agreements several years ago in case that it later dropped. For his part, General Counsel Robb has signaled previously that he takes a dim view of neutrality agreements, but as his memo notes, the NLRB itself has been inconsistent with its approach to employer involvement in organizing campaigns on one hand and with decertification efforts on the other.
Indeed, to put it bluntly, the NLRB has maintained a double standard that ultimately favors labor’s interests depending on whichever scenario is at play. Moreover, Robb notes that he has “increasingly seen in neutrality agreements provisions that go beyond neutrality into the area of impermissible support” because they “often contain provisions that sacrifice the statutory rights of employees for the commercial interests of unions and employers.”
Robb further observes that “extant Board law has effectively permitted interference with employee free choice by not carefully examining the provisions of neutrality agreements to determine whether they are, in fact, neutral or provide support to the union.” As such, he intends to present cases to the Board to consider when neutrality agreements “provide ‘more than ministerial support’ to the union’s effort to organize,” which makes them unlawful.
Assuming the Board accepts Robb’s invitation to do so, it could issue a decision curtailing the use of neutrality agreements. More importantly, such a decision could also curtail the pressure campaigns that often occur when employers choose not to bow to union demands that they forfeit their employees’ rights.