Employment Law Report
NLRB General Counsel Takes Aim At “Captive Audience” Meetings
By: Michelle D. Wyrick
In General Counsel Memorandum 22-04, NLRB General Counsel Jennifer Abruzzo takes aim at “captive audience” meetings that include discussions about employees’ statutory labor rights. On April 7, 2022, she announced that she will ask the National Labor Relations Board (“NLRB”) to find these mandatory meetings unlawful.
It is not uncommon for employers to hold informational meetings about unions, especially during union organizing campaigns. The NLRB concluded long ago that an employer does not violate the National Labor Relations Act (“NLRA”) by requiring its employees to attend meetings in which the employer explains its views on unions and encourages employees not to unionize as long as no threats of retaliation or coercion are involved. Indeed, Section 8(c) of the NLRA states that the expression of “any views, argument, or opinion” is not evidence of an unfair labor practice if there is “no threat of reprisal or force or promise of benefit.”
Even so, General Counsel Abruzzo contends that mandatory employee meetings at which union organizing is discussed “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.” She argues that captive audience meetings provide the employer with a “license to coerce,” which is an “anomaly in labor law.” She plans to urge the NLRB to reconsider the existing precedent and find captive audience meetings unlawful if employees are (1) required to meet on paid time or (2) “cornered” by management while performing their jobs. General Counsel Abruzzo argues that in these two instances, employees are deprived of their statutory right to refrain from listening to the employer’s speech. General Counsel Abruzzo’s proposed rule would not apply to mandatory employee meetings covering topics other than employees’ exercise of Section 7 rights under the NLRA.
If an employer holds a mandatory meeting at which unions are discussed, it should understand the risk that an NLRB regional office could pursue unfair labor practice charges against it under General Counsel Abruzzo’s latest theory. If adopted by the NLRB, this issue will undoubtedly head to the courts for decision.