NLRB General Counsel Wants to Make 'Captive Audience' Meetings Illegal

​For more than 70 years, employers have had the right to convene "captive audience" meetings with employees about their statutory labor rights, including the right to refrain from forming unions. On April 7, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo announced in a memo that she will ask the NLRB to find such mandatory meetings unlawful.

Thomas Payne, an attorney with Barnes & Thornburg in Indianapolis, described the memo as "a thinly veiled attempt to make organizing easier for unions by taking away a tool that employers have to make sure employees are fully informed of their rights and how the organizing process works."

"To succeed," he added, "Abruzzo will have to convince a board majority to ignore decades of precedent."

Captive audience meetings can serve as a proper counterbalance to arguments advanced by organized labor outside the workforce and sometimes within employee homes, which are generally off-limits to employers in this context, noted Reyburn Lominack III, an attorney with Fisher Phillips in Columbia, S.C. "Because the employer is generally paying employees for their time during such meetings, they have long been recognized as a lawful extension of free-speech rights in the absence of improper statements or conduct," he said.

Topics Covered

Thomas Servodidio, an attorney with Duane Morris in Philadelphia, said captive audience meetings allow employers the opportunity to educate employees about such topics as:

• The NLRB election process.
• The legal significance of having signed a union authorization card, which may not have been fully explained by the union when employees were asked to sign the cards.
  
• The impact of electing an exclusive collective bargaining representative to speak on their behalf regarding terms and conditions of employment, with the resulting loss of one's individual voice at the workplace.
• Restrictions on the ability of the employer and employees to resolve any differences through an open-door policy, as opposed to a more formal grievance mechanism set forth in a collective bargaining agreement and controlled by the union.
• The give-and-take of the negotiation process that occurs when the employer and the union seek to negotiate a collective bargaining agreement, which could include the union trading away some current benefits and privileges to obtain something the union wants.
• The fact that the union may have made promises about what it will achieve in the collective bargaining process without explaining that the union cannot deliver on any such promises absent agreement by the employer.
• The potential impact of a strike or work stoppage on employees if the union calls a strike in order to pressure the employer to accept the union's bargaining demands.
• The significance of the secret-ballot vote in the upcoming election.
• The importance of voting in the election since the result of the election is based on the majority of votes cast.

An employer speech covering this information can't be made within 24 hours of a union election, noted Steven Horowitz, an attorney with Horowitz Law Group in Far Hills, N.J. "These meetings are a good opportunity for an employer to say, 'We hear you. … We may have taken our eye off of the ball. … Give us an opportunity to prove that to you. If we don't, you can always refile your petition,' " he noted, saying there should be an open forum for questions and answers.

"But coercive and threatening speech is not allowed by either management or unions," Horowitz added.

Abruzzo's Memo

The NLRB has long recognized that the National Labor Relations Act protects employees' right to listen— as well as their right to refrain from listening—to employer speech concerning the exercise of their rights under the act to organize or refrain from organizing, Abruzzo wrote in the memo.

"Forcing employees to listen to such employer speech under threat of discipline—directly leveraging the employee's dependence on their jobs—plainly chills employees' protected right to refrain from listening to this speech," she wrote. "The fact that a threat arises in the context of employer speech does not immunize its unlawful coercive effect. The Supreme Court has made clear that threats fall outside the scope of employers' statutory and constitutional free speech."

She stated that the board incorrectly concluded years ago 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 express or implicit threats to force employees into meetings concerning unionization or other statutorily protect activity," she wrote. "And the board allows employers to make good on those threats by discharging or disciplining employees who assert their right to refrain from listening by failing to attend, or leaving, such mandatory meetings. That license to coerce is an anomaly in labor law, inconsistent with the act's protection of employees' free choice and based on a fundamental misunderstanding of employers' speech rights."

Abruzzo said she will recommend that the NLRB adopt "sensible assurances that an employer must convey to employees in order to make clear that their attendance is truly voluntary."

Employers' ability to exercise their right to express views on labor issues, so long as that expression does not contain a threat or promise of benefit, would be hindered by this restriction, according to Payne.

"For example, employers often will discuss these types of issues during already-scheduled meetings—which, like any other work meeting, would be mandatory to attend—but Abruzzo's restriction would mean an employer could not discuss labor issues during normally scheduled meetings but rather would have to schedule a separate voluntary meeting for these issues," he said. "This creates a needless restriction, especially in light of the fact that the law already has adequate protections in place.

"Abruzzo also takes issue with circumstances where an employee 'is cornered by management while performing their job duties.' This is quite vague and would be very difficult for employers to understand."

For example, if a supervisor approaches an employee to give a work-related instruction but the employee brings up labor issues, "must the supervisor refuse to answer at risk of this being perceived as an unlawful meeting?" Payne asked.

Abruzzo concluded by saying she would ask the NLRB to reconsider its current precedent on mandatory meetings in appropriate cases, including in a brief that soon will be submitted to the board.