Case Headed to NLRB Might Prohibit Employers from Holding 'Captive Audience' Meetings

​A case is pending before the National Labor Relations Board (NLRB) with potentially large ramifications for employers and workers. A brief filed in April by Jordan Wolfe, counsel for NLRB General Counsel Jennifer Abruzzo, with the NLRB calls for barring employers' "captive audience" meetings and prohibiting employers from restricting email to only business use.

Captive Audience Meetings

The brief in the Garten Trucking case "provides a clear road map as to how the general counsel would like to see the law change in a number of areas, including a ban on captive audience meetings," said Jeff Toppel, an attorney with BianchiBrandt in Scottsdale, Ariz.

Another term for a captive audience meeting is "employer speech during a union campaign," said Daniel Johns, an attorney with Cozen O'Connor in Philadelphia. The purpose of the communication is to give the employer the opportunity to speak to employees about unionization during a campaign, a right protected by the First Amendment, he said.

Such meetings are currently prohibited only within 24 hours prior to a union election. If the NLRB bans captive audience meetings across the board, employers "would be severely limited in their ability to communicate with their employees regarding unionization," Toppel said.

A captive audience meeting educates employees about unions, the cost of unions, and what unions can and can't do, said James Redeker, an attorney with Duane Morris in Philadelphia. Also, there is education about how unions get employees to sign union authorization cards.

The argument made on the general counsel's behalf in the brief "is that such meetings are inherently coercive and that any such meetings must be voluntary," Redeker said.

The brief states that for convened employees, the employer would be required, if the NLRB adopts the brief's view, to explain the purpose of the meeting and assure workers that:

• Attendance is voluntary.
• They are free to leave at any time.
• Nonattendance will not result in reprisals, and there will be no loss of pay if the meeting occurs during regularly scheduled work hours.

If an employer announces a meeting in advance, it must reiterate the explanation and assurances at the start of the meeting, according to the brief.

The brief goes on to state that if an employer corners employees to address them concerning their rights under the National Labor Rights Act (NLRA), it would, if the NLRB adopts the brief's view, have to ensure that meeting is voluntary, provide similar assurances, and note that participation in the meeting will not result in rewards or benefits. Supervisors and managers already cannot coercively question employees, threaten them or bribe them regarding their union activities.

Captive audience meetings—which David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis, refers to as "group meetings"—currently may include discussions of what the collective bargaining process is in practice or address misinformation spread by a union. These types of group meetings have long been recognized as permissible, dating back to a 1948 decision, Babcock and Wilcox, which the brief asks the board to overrule.

Employers have the right under NLRA Section 8(c) to express their opinions about unions so long as they do not threaten or promise anything. The brief says that mandatory meetings are inherently coercive and threatening and, therefore, this section doesn't apply.

The position of the general counsel is that these group meetings pose an inherent threat of reprisal against employees and animus toward unions, Redeker said. That is, they chill employees' rights to organize and support a union.

"Given group meetings have been permitted under precedent for 75 years and the National Labor Relations Act has a provision that specifically vests employers with the right to lawfully express their views on unionization to their workforce, this would be a significant change to labor law should the NLRB adopt this position," Pryzbylski said.

Mandatory group meetings and one-on-ones are the two most effective tools to combat unionization, but the brief would take these away, Redeker noted. He added, however, that supervisors should be thoroughly trained to ensure they do not have any conduct or language from which animus toward unions and unionization could be inferred.

When a union petition is presented, the union may have been talking to employees over a significant period of time about unionization, Johns added. "Employers have only a small window to accomplish the same thing after a petition is filed" and should be able to make their case, he said.

As for attendance at captive audience meetings being mandatory, Johns said "that is the nature of an employment relationship, where nearly all meetings are mandatory for employees and paid time."

Limits on Email’s Usage Challenged

The brief also calls for employees to have a presumptive right to use email for union organizing purposes.

During the Obama administration, the NLRB held in Purple Communications that if an employer is going to give its employees access to a company email system, it must let them use that email system for nonbusiness purposes while on nonwork time. In the Trump administration, the board overruled that decision in Rio All-Suites and held that employers can limit email use to only business purposes.

The general counsel has made it clear that she intends to overrule Rio All-Suites, Toppel said.

Employers often want to limit email usage to business purposes to assist in preventing the use of systems for illegal purposes such as sexual harassment, Johns said. Personal use of email also might clog servers and make systems less efficient and reliable. "Employers often have limited the use of bulletin boards to business-use only purposes. Why should email be treated differently?" Johns asked.

The opposing view is that email and other technologies are no different than conversation, he said.

The general counsel believes employees should have the same avenues of communication as the employer, Redeker said. "Also, it used to be that employees gathered around the water cooler to talk," he added. "Email has replaced the water cooler."

The brief also argues for employees to be able to use nearly all forms of communication, including Slack and Zoom, to unionize. "This would be a large expansion of employee rights," Pryzbylski said.