NLRB General Counsel Urges Board to Find Captive Audience Speeches are Unlawful
By Jason Patterson, Michael Warner and Emily Selig - Franczek P.C.
April 18, 2022
For decades, employers have been permitted to hold mandatory meetings or “captive audience speeches” in response to union organizing campaigns to present the company’s position on unionization. On April 7, 2022, the National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum expressing that the NLRB should declare such meetings to be unlawful, as such meetings infringe on employees’ rights guaranteed by Section 7 of the National Labor Relations Act (NLRA) to refrain from engaging in protected activities at work. According to GC Abruzzo, forcing employees to listen to employer speech concerning the exercise of statutory labor rights “under threat of discipline” “plainly chills employees’ protected right to refrain from listening to this speech in violation of Section 8(a)(1).”
Historically, the NLRB and courts have interpreted the NLRA to permit mandatory captive audience meetings in which employers encourage employees to reject union representation. Employers have also been allowed to discipline or discharge employees who either refuse to attend or leave the meetings early. GC Abruzzo will urge the Board to hold that “employees constitute a captive audience deprived of their statutory right to refrain, and instead are compelled to listen by threat” in two circumstances: when employees are “(1) forced to convene on paid time or (2) cornered by management while performing their job duties.” GC Abruzzo assures that such holding will not interfere with employers’ freedom of expression, as the First Amendment does not protect coercive actions and interventions. GC Abruzzo proposes that the Board “adopt sensible assurances” that require employers to convey to employees that their attendance at meetings concerning union activities is “truly voluntary.”
GC Abruzzo’s memorandum is only a recommendation at this point and does not change current Board law. However, the GC will likely search for a “test case” which will eventually be advanced to the Board for ruling, meaning that employers who hold “captive meetings” that currently are lawful may nevertheless still be faced with lengthy and potentially expensive Labor Board investigations and litigation. There is no guarantee the Board will agree with the GC’s position, but with the Board’s current Democratic majority, it is possible that an employer’s ability to engage in captive audience speeches could be restricted or modified. In the interim, employers should evaluate their organizing communication strategies with counsel.
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