NLRB General Counsel Announces Challenge to Employer Rights During Union Organizing Campaigns
By Kristofor Hanson - Lindner & Marsack, S.C.
April 7, 2022
In a new memorandum published April 7th, National Labor Relations Board (the “Board”) General Counsel, Jennifer Abruzzo, stated aloud what many had thought would be a goal of the newly appointed chief lawyer for the agency, challenging an employer’s ability to require employees to attend meetings during a union organizing campaign.
In so doing, Abruzzo has asked the Board to reconsider its precedent and find that mandatory meetings – often referred to as “captive audience” meetings – are unlawful. The General Counsel has taken the position 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 speech.” The protected rights to which she refers are those rights granted to workers under Section 7 of the National Labor Relations Act (the “Act”). Those rights include “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 rights also include the right of a worker to “refrain from any or all such activities.”
The precedent the General Counsel asks the Board to reconsider dates to 1948 in Babcock & Wilcox Co., 77 NLRB 577 (1948), when the Board found that employers are entitled to require employees, during their work hours, to attend meetings to discuss issues related to a union organizing campaign. Under the Act, Employers are allowed to present factual information to employees during such meetings. They are not, however, allowed to make promises or threaten employees. Accordingly, the Act already places limitations on employers regarding what can be presented during captive audience meetings.
Nevertheless, the General Counsel has taken the position that requiring employees to attend meetings during their working hours crosses a line into the area of coercion and “plainly chills employees’ protected right to refrain from listening to this speech in violation of [the Act].”
Therefore, Abruzzo has asked the Board to revisit this issue and allow employees to refrain from attending any meeting where union organizing will be discussed on paid time and any discussion in which an employee “is cornered by management while performing their job duties.”
The General Counsel contends that imposing these protections will not impair employers’ rights to freedom of expression. However, she does not provide any insight into the mechanisms employers may use to get their message out to employees during an organizing campaign. Those mechanisms will likely be left to meetings on paid time, attendance at which will be entirely voluntary, as well as postings and mailings that have been traditionally used during organizing campaigns.
This request by the General Counsel will likely be met favorably by the Board should it hear a case concerning this issue, as the current Board is comprised of a majority of union-friendly members. The Board may soon hear such a case as complaints on this subject were filed during the recent, failed union organizing campaign at an Amazon facility in Alabama. Should the Board reach a decision on such a case, we will promptly update you with details.
In the meantime, captive audience meetings are still allowed and are an effective way for an employer to get its message out during a union organizing campaign. In these meetings, employers should direct their communications to facts, opinions, and experience with unions, but avoid coercive or threatening language, or promising employees benefits that they may receive should they vote against unionization.
Should you have questions concerning this or any other labor and employment matter, please contact our offices for assistance.