Recently the General Counsel of the National Labor Relations Board (NLRB), Jennifer Abruzzo, issued GC Memo 22-04, which seeks to bar employers from convening employee meetings on working time to address union representation unless they provide employees specific assurances that participation is completely voluntary. General Counsel Abruzzo stated that despite nearly 75 years of NLRB case precedent, the practice of employers holding "captive audience" meetings was out of sync with current labor law practices. While the memorandum itself does not change the law, it does mean the General Counsel will be looking for a test case to bring to the Board. With a 57% uptick in representation petitions in the past six months, more employers will have to learn and comply with the ever-changing legal minefield that is the election process.
What Are "Captive Audience" Meetings?
"Captive audience" meetings refer to the standard practice among employers of meeting with employees during union organizing campaigns to express the employer's view of the possible negative effects that unionizing may have on the general workforce. Employers are allowed to discuss the election process, the collective bargaining process, and potential ramifications that a unionized workforce could have for the employer/employee relationship. These meetings can be mandatory and take place on company property during working hours when the employees are on the clock. In the 1948 case of Babcock v. Wilcox Co., the NLRB held that the then newly amended National Labor Relations Act (NLRA) allowed employers to hold "compulsory audience" meetings. Babcock v. Wilcox Co., 77 NLRB 577 (1948). In the 74 years since Babcock v. Wilcox Co., the NLRB has repeatedly found these "captive audience" meetings to be permissible, and as such they have become a powerful tool for employers.
General Counsel's Rationale
In the memo, General Counsel Abruzzo states her belief that NLRB case precedent "is at odds with fundamental labor-law principles, our statutory language, and our congressional mandate," and she urges the NLRB to reconsider its precedent to find "captive audience" meetings unlawful moving forward. General Counsel Abruzzo goes on to state that the Board must "keep in mind the basic 'inequality of bargaining power' between individual employees and their employers." She suggests that employers "commonly use express or implicit threats to force employees into meetings." Both of these reasons are why General Counsel Abruzzo would like the Board to reconsider current precedent on mandatory meetings and find that situations in which employees (1) are forced to convene on paid time or (2) are cornered by management while performing their job duties are inherently coercive and a violation of the employees' Section 7 rights.
General Counsel Abruzzo, however, does want to protect employers' free-speech rights to express views, arguments, or opinions concerning their election positions, without unduly infringing on the Section 7 rights of employees to refrain, or not, from listening to such positions. To do so, General Counsel Abruzzo suggests that the Board adopt assurances that the employer must convey to employees that their attendance is voluntary at these meetings.
General Counsel Abruzzo plans to release further guidance and a legal brief on the matter that will be submitted to Board members for consideration.
What Does This Mean for Employers?
With a 57% increase in representation petitions during the first half of the fiscal year (according to the NLRB), more employers will have to learn how to navigate the legally complex election process. Employers should anticipate potential informal and formal challenges to any "captive audience" meetings if they are in the representation/election process. In fact, formal charges are already being brought against employers. The NLRB recently issued charges against an industry-leading food services provider and an industry-leading technology company for violations of federal labor law for engaging in "captive audience" meetings, despite the current legal standing of "captive audience" meetings. Similarly, as recently as the end of May 2022, a union trying to organize workers at a leading technology company's Atlanta location filed a charge with the NLRB citing violations of federal labor law in the form of "captive audience" meetings. These charges are all potential vehicles for General Counsel Abruzzo to bring to the Board as test cases to overturn Babcock v. Wilcox Co.
If "captive audience" meetings are successfully overturned, it will significantly impact employers' rights and their ability to respond to union organizing campaigns. Employers trying to maintain a non-unionized workforce would be severely limited in their capacity to present the employer's side in the unionization debate. In the meantime, there are three actions employers can take to ensure compliance:
- Alternative Communication Methods: Employers should collaborate with labor counsel in creating an appropriate compliance strategy for finding alternative methods to provide the same information to its employees.
- Document the Voluntariness: Employers should also be proactive in their dealings with employees and explore methods of establishing and documenting the voluntary nature of their attendance and participation at these "captive audience" meetings.
- Training: Employers should provide training for employee-facing supervisors on how best to underscore the voluntary nature of these participatory "captive audience" meetings.
Employers should stay up to date on the current state of the law and dedicate management training to the exact nature of employer rights with regard to union organizing campaigns. Employers with questions about their rights during an election under the NLRA should contact the authors of this article or any other member of Venable's Labor and Employment Group for guidance.