Held in all-staff, small-group or one-on-one for­mats, employ­ers use these manda­to­ry meet­ings to con­fuse and intim­i­date employ­ees into vot­ing against union rep­re­sen­ta­tion. In a 2009 study , labor rela­tions schol­ar Kate Bron­fen­bren­ner found that nine out of ten employ­ers use cap­tive audi­ence meet­ings to fight a union orga­niz­ing dri­ve. Threat­en­ing to cut wages and ben­e­fits in 47 per­cent of doc­u­ment­ed cas­es, and to go out of busi­ness entire­ly in a stag­ger­ing 57 per­cent, these cap­tive audi­ence meet­ings cor­re­late with an unsur­pris­ing 43 per­cent union win rate when used.

The cap­tive audi­ence meet­ing, ​“ management’s most impor­tant weapon” in an anti-union cam­paign, is final­ly being chal­lenged in a peti­tion to the Nation­al Labor Rela­tions Board that could help re-bal­ance the scales in union rep­re­sen­ta­tion elections.

Such meet­ings were ille­gal under the orig­i­nal Nation­al Labor Rela­tions Act. The courts even­tu­al­ly decid­ed that as long as a boss’s threats were mere­ly implic­it, it would be a vio­la­tion of his puta­tive ​“free speech” rights for the Labor Board to restrain their abil­i­ty to make his obvi­ous opin­ions unavoid­able. (The courts still love to use ​“free speech” as a jus­ti­fi­ca­tion for union-bust­ing; Friedrichs v. CTA, the case that could dec­i­mate Amer­i­can pub­lic sec­tor unions cur­rent­ly before the court, is a claim of infringe­ment of free speech.)

I recent­ly advo­cat­ed for an ​“equal time” pro­vi­sion, that any manda­to­ry on-the-clock dis­cus­sion of an upcom­ing union cer­ti­fi­ca­tion vote make room for a pro-union pre­sen­ta­tion, be incor­po­rat­ed in a new labor law reform bill. But these peti­tion­ers to the NLRB — 106 of the lead­ing labor-side and neu­tral-par­ty experts on labor rela­tions (the boss’ lawyers couldn’t bring them­selves to endorse the need for fair debate, for some rea­son) — real­ized that ​“equal time” could be made a reg­u­la­to­ry rule right now.

“Cap­tive audi­ence” meet­ings: not always the norm

Equal time was a rule, briefly in the 1950’s, and the NLRB is on record as invit­ing unions to ask for it to be restored since 1966. After the 1941 Supreme Court deci­sion that estab­lished a boss’s First Amend­ment right to pum­mel his employ­ees into anti-union sub­mis­sion, the NLRB spent the next quar­ter cen­tu­ry ping-pong­ing back and forth between dif­fer­ent legal stan­dards on employ­er speech, union access to the employer’s prop­er­ty and the so-called ​“lab­o­ra­to­ry con­di­tions” (basi­cal­ly, some fan­ta­sy world in judges’ imag­i­na­tions where work­ers don’t feel threat­ened, bribed or unin­formed) under which a fair elec­tion can be conducted.

In a 1966 case, Gen­er­al Elec­tric Co. and McCul­loch Corp., unions peti­tioned to over­turn elec­tion loss­es caused by the employer’s com­bi­na­tion of manda­to­ry cap­tive audi­ence meet­ings and restric­tion of union orga­niz­ers from the employer’s premis­es. The unions essen­tial­ly sought to reestab­lish the equal time rules of the 1950’s. The Board declined to do so — but only con­di­tion­al­ly and tentatively.

Their rea­son: on the very same day, the Board hand­ed down a deci­sion in a case called Excel­sior Under­wear, Inc., in which employ­ers were man­dat­ed to hand over to the union a list of home address­es of all bar­gain­ing unit employ­ees with­in a cer­tain num­ber of days of the sched­uled elec­tion. The board declined to rule on the equal time com­plaint in Gen­er­al Elec­tric ​“in light of the increased oppor­tu­ni­ties for employ­ees’ access to com­mu­ni­ca­tion which should flow from Excel­sior, but with which we have, as yet, no experience.”

Sev­er­al gen­er­a­tions of union orga­niz­ers now have expe­ri­ence with Excel­sior lists. Chas­ing around a bunch of work­ers in vis­its to home address­es that are fre­quent­ly incor­rect after the boss has been free to spend an unlim­it­ed num­ber of hours in manda­to­ry meet­ings scar­ing the crap out of them is no sub­sti­tute for hav­ing an equal amount of time at work dur­ing the work­day to make the case for a ​“yes” vote for the union.

Why didn’t unions appeal the Gen­er­al Elec­tric deci­sion in 1967 (or 1977) after enough expe­ri­ence with the new Excel­sior rules? The answer is prob­a­bly that orga­niz­ing was not an insti­tu­tion­al and strate­gic pri­or­i­ty for most inter­na­tion­al unions until John Sweeney became Pres­i­dent of the AFL-CIO in 1995 with a promise to ​“orga­nize at an unprece­dent­ed pace and scale.”

Regret­tably, the orga­niz­ers who recharged the union orga­niz­ing depart­ments in the mid-1990’s most­ly accept­ed the legal rules as pre­sent­ed. And those of us who fol­lowed in their foot­steps, myself includ­ed, most­ly did the same. There is a per­va­sive ten­den­cy in our move­ment to accept that when it comes to labor struc­ture, strat­e­gy and law, ​“it is what it is”— the hor­ri­ble struc­tures of Amer­i­can col­lec­tive bar­gain­ing rules are a giv­en and we don’t have much oppor­tu­ni­ty to change them.

Three rea­sons to cheer ​“equal time”

But this new rule, while a nar­row tweak of an oth­er­wise bro­ken law, would be a big deal if adopt­ed by the NLRB. First, because it would cause many employ­ers to aban­don the cap­tive audi­ence tac­tic alto­geth­er rather than make time for orga­niz­ers to state the case for form­ing a union on the company’s premis­es and on the company’s time. Since these meet­ings are one of the boss’s prin­ci­pal tools for beat­ing unions, that’s a good thing.

Oth­er employ­ers will like­ly con­tin­ue the cap­tive audi­ence meet­ings and sim­ply refuse to com­ply with the equal time require­ment, since the only pun­ish­ment for vio­lat­ing the rule would be a rerun elec­tion. This will par­tic­u­lar­ly be the case while the new rule is inevitably chal­lenged in the courts. In my expe­ri­ence, the new expe­dit­ed elec­tion pro­ce­dures that the NLRB insti­tut­ed last May — which have increased both the num­ber of union elec­tion peti­tions filed and the per­cent­age of elec­tions won by unions—have made employ­ers more like­ly to engage in brazen vio­la­tions of the Act in order to win delays before the union elec­tion. Deter­mined to ​“win” at any cost, they have less fear of unfair labor prac­tices and rerun elec­tions, because while the legal bills will add up, at least they get to impact the elec­tion timeline.

Still, ULPs and grounds for over­turn­ing unfa­vor­able elec­tions, while hard­ly jus­tice, are use­ful chips for orga­niz­ers to hold. These things cost boss­es mon­ey and cred­i­bil­i­ty and can serve to help wear down an anti-union employ­er in a long-term campaign.

But the best pos­si­ble out­come may come from the employ­ers who embrace the equal time rule, there­by forc­ing unions to up their orga­niz­ing game.

If the NLRB adopts the new rule (which is, to be clear, still a big ​“if”), they will almost cer­tain­ly lim­it equal time to mem­bers of the bar­gain­ing unit only — not orga­niz­ers and lead­ers on the union’s staff. Since intim­i­da­tion is the point of cap­tive audi­ence meet­ings, some employ­ers may assume that they can cow their own employ­ees who stand in as union representatives.

What is need­ed are work­ers who can speak con­fi­dent­ly and defin­i­tive­ly on behalf of their fel­low work­ers, in state­ments of ​“we” and ​“us.”

Despite the ample research that rep­re­sen­ta­tive orga­niz­ing com­mit­tees are an essen­tial com­po­nent of suc­cess­ful cam­paigns, too many unions gloss over real com­mit­tee build­ing, run quick card dri­ves and con­duct too much of their con­tract bar­gain­ing in degrees of opac­i­ty. This is why too many orga­niz­ing cam­paigns fail.

Take, for instance, a favorite top­ic of employ­er cap­tive audi­ence meet­ings: strikes. The boss’ mes­sage will inevitably be the union will make you go on strike. This is a dou­ble wham­my of the boss’ real ​“most impor­tant weapon”: fear.

Fear, fore­most, of the boss’ pow­er. If the boss decides an anti-union pre­sen­ta­tion is a more impor­tant use of your time and his mon­ey than the actu­al job that you were hired to do and makes him mon­ey, shud­der to think about what he may decide to do with your job if you defy his anti-union will.

But fear, also, of los­ing agency by sub­mit­ting to the author­i­ty of ​“union boss­es.” Who wants to run the gaunt­let of employ­er oppo­si­tion to work­place democ­ra­cy only to find out that your union might jam deci­sions down your throat like the old boss did?

Imag­ine a well-trained and empow­ered work­place leader respond­ing to the boss’s provo­ca­tion with the calm expla­na­tion, ​“We would only go on strike if we want­ed to, and had to, and if we could win. And we can only win if we all walk out togeth­er. I don’t know about you, but I would only strike for a damn good rea­son.” In one short breath, the boss’s mes­sage is blown away, and the work­ers are weigh­ing the source of their pow­er.

An uphill climb

The NLRB has recent­ly issued a num­ber of rule changes that have helped restore a degree of neu­tral­i­ty to work­place law. These have been extreme­ly con­tro­ver­sial in busi­ness cir­cles. The Board also has issued weighty deci­sions regard­ing the abil­i­ty of uni­ver­si­ty grad­u­ate employ­ees to orga­nize and clar­i­fi­ca­tion on char­ter schools as pri­vate employ­ers queued up for fur­ther con­tro­ver­sy this spring. Plus, Board mem­bers who only got appoint­ed through a rare bi-par­ti­san deal will start see­ing their terms expire this sum­mer when an elec­tion-sea­son Con­gress has lit­tle incen­tive to work togeth­er on approv­ing their replacements.

All of which is to say, don’t hold your breath for a speedy response to this equal time petition.

After all, pri­ma­ry peti­tion­er Charles Mor­ris, author of The Blue Eagle At Work, has seen his peti­tion on minor­i­ty union cer­ti­fi­ca­tions go unan­swered for over a decade. His co-pri­ma­ry peti­tion­er, Mar­quette Uni­ver­si­ty law pro­fes­sor Paul Secun­da, says they under­stand the uphill climb. He says they filed, inde­pen­dent­ly of any unions, sim­ply to get the con­ver­sa­tion going.

“We just want a fair vote. That’s all,” Secun­da says.

If Mor­ris and Secunda’s idea gains any trac­tion in union cir­cles, its fastest path to a rul­ing may be by a union appeal­ing to over­turn an elec­tion loss in a cam­paign where man­age­ment locked out the orga­niz­ers and con­duct­ed cap­tive audi­ence meet­ings. Unlike a peti­tion, the NLRB would at least have to respond to such an appeal.

And there’s no short­age of grounds for appeal. Nine­ty per­cent of all union elec­tion cam­paigns see employ­ers uti­lize cap­tive audi­ence meet­ings and more than half of those see work­ers direct­ly threat­ened with job loss result­ing in more than half of all union elec­tions where employ­ers sub­ject work­ers to cap­tive audi­ence meet­ings. I sus­pect many union staffers and mem­bers read­ing this have a lost union elec­tion cam­paign near and dear to your heart that could be appealed on the grounds that Mor­ris and Secun­da lay out.

Still, Mor­ris and Secunda’s effort high­lights the val­ue of bring­ing out­side per­spec­tive into union strat­e­gy. While many unions are under­stand­ably focused on beat­ing back the Friedrichs v. CTA assas­si­na­tion attempt and on prac­ti­cal efforts to sign up agency fee pay­ers to union mem­ber­ship, there is a bad need for a no-holds-barred strate­gic dia­logue on the future of labor. It would be won­der­ful if the AFL-CIO could for­mal­ly con­vene it, but it clear­ly would need one or more of our great labor col­leges to pull it togeth­er. When it comes to revi­tal­iz­ing the labor move­ment, there might not be a lot of new ideas, but there are clear­ly lots of good old ideas that we’ve some­how forgotten.