NLRB General Counsel Seeks to Do Away with “Captive Audience” Meetings
National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo is targeting so-called “captive audience” meetings and has asked the Board to find such meetings unlawful. Employers often hold these meetings during union organizing campaigns to present their views to assembled employees regarding unionization and other issues relating to employee working conditions. If the Board ultimately sides with the GC, employers will be found to have violated the National Labor Relations Act (NLRA) even if such meetings do not involve unlawful statements or activities.
On April 7, Ms. Abruzzo issued GC Memo 22-04 and announced that she would urge the Board to reconsider (read: overrule) precedent and ban mandatory meetings where employers discuss union activity or other protected activities with employees. In her memo titled “The Right to Refrain from Captive Audience and Other Mandatory Meetings,” Ms. Abruzzo argues that such meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such [employer] speech.” Further, she would ask the Board to hold that in two circumstances employees will understand – even if they are not told as much – that their presence at an employer meeting is mandated: where employees are (1) forced to convene on paid time, or (2) cornered by management while performing job duties. Ms. Abruzzo posits that in both cases employees are a “captive audience” deprived of their right to refrain from listening to employer speech and are compelled to listen by a threat of discipline or other reprisals.
If the Board eventually sides with the GC, it will overturn 75 years’ worth of precedent holding that such meetings are not inherently unlawful. In 1948, the Board held in Babcock & Wilcox Co. that an employer does not violate the NLRA by requiring employees to attend speeches in which it urges them to reject union representation. The state of the law on this subject has been undisturbed through numerous administrations of both major political parties.
It did not take long for Ms. Abruzzo’s office to find a case to use as a vehicle to ask the Board to ban these mandatory meetings. Just four days after issuing GC Memo 22-04, the GC’s office filed its brief in Cemex Construction Materials Pacific, LLC, urging the Board to overturn Babcock & Wilcox and hold that “captive-audience meetings regarding the exercise of Section 7 rights are per se unlawful.” The GC’s argument reasons that employees “will reasonably perceive a threat of reprisal for failure to attend, whether or not a threat is openly stated” or the employer does not state that the meeting is mandatory. Further, the GC asks the Board to find that an employee has been unlawfully “cornered” into a “captive-audience meeting” when a supervisor approaches them while they are performing job duties, because employees will supposedly perceive they cannot abandon their work and refrain from listening to the employer without risking reprisal. According to the GC’s brief, an employer would escape liability only if it states that:
- Attendance is entirely voluntary;
- Employees are free to leave at any time if they choose to attend;
- Non-attendance will not result in reprisals, including loss of pay for choosing not to attend if the meeting occurs during the employee’s regular working hours;
- Attendance will not result in rewards or benefits.
Even if such assurances are provided in advance, the GC has asked that the Board require them to be repeated at the start of the meeting. As for “cornered employees,” an employer will have to state that participation in the discussion is voluntary, that non-participation will not result in reprisals, and that participation in the discussion will not result in rewards or benefits.
Takeaway: If the Biden Board accepts the GC’s invitation to reverse nearly 75 years of precedent and find such mandatory meetings unlawful, it will significantly impact the way employers respond to union organizing campaigns. Employers would now be required to repeatedly recite a list of assurances to assembled employees, as well as employees it merely stops to speak with about issues related to unionization or working conditions. Failure to recite these assurances will result in violation of the NLRA, even where the employer does not state attendance is mandatory or where the employer’s speech does not otherwise violate the NLRA. Moreover, such a Board decision may affect employers’ ability to persuade employees who have heard only one side of the unionization argument and have either determined they do not wish to hear the employer’s position or do not wish to be perceived by union-supporting colleagues as interested in hearing the employer’s position.
As always, we will keep you updated regarding this important issue.