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NLRB General Counsel Takes Aim at “Captive Audience” Meetings

 For years employers have been allowed to hold mandatory meetings or “captive audience speeches” to discuss their position on unions.  These meetings are often in response to unionizing campaigns. Now, captive audience speeches may be a thing of the past.

The National Labor Relations Board’s (“NLRB” or “Board”) General Counsel, Jennifer Abruzzo, recently issued a memorandum urging the Board to reverse this precedent. Abruzzo’s rational? Captive Audience speeches “inherently involve an unlawful threat” to employees Section 7 rights (their right to support or not support unions). As a side note, some states are looking to pass similar legislation.  Whether it will be enforceable, and not pre-empted by federal law, is a key question. For now, we suggest employers monitor both their state and federal laws.

Specifically, Abruzzo wants to make it per se unlawful for employers to (1) force employees to convene on paid time to discuss unions and (2) “corner” employees while they perform their job duties to discuss unions. Abruzzo characterized these actions as “at odds with fundamental labor-law principles.” In their place, Abruzzo wants the Board to require employers to provide “sensible assurances that . . .  attendance is truly voluntary.”

There is no guarantee the Board will agree with Abruzzo’s position but given the very liberal nature of this Board and the Biden Administration, it is very possible. In the meantime, employers should evaluate their communication strategies with counsel. It is possible to make the meetings voluntary while still gathering the large majority of the workforce. The questions is should you do this now or only after the Board issues its decision. The bottom line is some employer will likely be a test case; the only question is who?

 Brody and Associates regularly advises its clients on all labor management issues, including union-related matters, and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.