Earlier this month, the top attorney for the National Labor Relations Board (“NLRB”), General Counsel Jennifer Abruzzo (“Abruzzo”), issued Memorandum 22-04 urging the Board to depart from significant and longstanding precedent concerning an employer’s ability to compel employee attendance at meetings addressing unionization. Click here to find all NLRB Memorandums. Specifically, the Memorandum entitled The Right to Refrain from Captive Audience and other Mandatory Meetings takes the position that “captive audience” meetings held by employers on company time for the purpose of presenting opposing views on unionization are “at odds with fundamental labor-law principles” and should be deemed violative of the National Labor Relations Act (“NLRA” or the “Act”).
In the Memorandum, Abruzzo explains that mandatory meetings where employees are exposed to employer messaging on unionization “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 speech.” To that end, Abruzzo reasons that because the Board has long recognized that the Act protects employees’ right to listen as well as their right to refrain from listening to employer speech concerning the freedom to unionize or other protected activity, captive meetings naturally run afoul of the Act by coercing employee attendance.
Although Abruzzo acknowledges that the Board has consistently approved of such meetings on company time and the employer’s right to discipline an employee for failing to attend or leaving early, the Memorandum nonetheless pressures the Board to prosecute violations of the Act when: (1) employees are required to convene in groups on paid time; or (2) employees are spoken to by management representatives while performing their job duties where the discussion involves topics related to the exercise of Section 7 rights. Abruzzo goes on to suggest an alternative dynamic, where she would ask the NLRB to “adopt sensible assurances” that employers can give to their employees to make it clear that attendance at meetings and listening to employer union messaging is voluntary.
Notably, Abruzzo’s Memorandum comes amid a stall in the legislature in passing the Protecting the Right to Organize (PRO) Act which seeks to overhaul the NLRA for the first time in more than 70 years and includes a prohibition on an employer’s ability to require employee attendance at meetings concerning its views on unionization.
Captive meetings have long been an important tool for employers facing an organizing campaign. Employers use these meetings to share information regarding the union with their employees, which unions are not required by law to share. For example, unions are legally permitted to mislead workers, provide workers with false information, and make far-fetched promises to employees. Captive meetings provide a forum for employers to counteract the union’s ability to withhold information and make misrepresentations.
While Abruzzo’s Memorandum is significant insofar as she decides whether to issue complaints, there are serious questions regarding her authority to unilaterally condemn conduct that has been declared legal by the Board for decades. While the full force of the Memorandum, if any, has yet to be realized, employers should remain alert until the Board’s intentions are known.
If you have any questions concerning this developing topic, please contact the authors or the Saul Ewing LLP attorney with whom you are regularly in contact.