United States: NLRB General Counsel Aims To Drastically Change Employers' Rights Related To "Captive Audience" And Other Mandatory Meetings About Unionization

For nearly 75 years, employers have held the right to gather employees at work for mandatory meetings to discuss, in a non-coercive manner, the employer's views concerning unionization. On April 7, 2022, however, National Labor Relations Board (“NLRB” or “Board”) General Counsel Jennifer Abruzzo issued a memorandum to all NLRB Field offices announcing that she will ask the NLRB to overturn this precedent and find that meetings of this sort violate the National Labor Relations Act (the “Act”).

The law related to these types of employer meetings has been settled since the NLRB held in a 1948 decision, Babcock & Wilcox Co., 77 N.L.R.B. 577 (1948), that an employer did not violate the Act when it compelled its employees during work to attend and listen to a speech that encouraged union rejection. General Counsel Abruzzo argues in her memorandum that the NLRB made an incorrect conclusion in the Babcock & Wilcox Co. decision, and that the findings in that decision are an “anomaly.” 

General Counsel Abruzzo argues that mandatory “captive audience” meetings, including group meetings convened on paid time and more informal discussions between management and an employee while the employee is performing job duties, deprive employees of their “statutory right to refrain” from listening to employer speech about unionization. The General Counsel states that during such meetings, employees are “compelled to listen by threat of discipline, discharge, or other reprisal—a threat that employees will reasonably perceive even if it is not stated explicitly.” The memorandum asserts that the Board must find such mandatory meetings to be unlawful to ensure full protection of employees' statutory rights.

While meetings about unionization that employees may voluntarily attend remain permissible in the General Counsel's view, she will be asking the Board to “adopt sensible assurances that an employer must convey to employees in order to make clear their attendance is truly voluntary.”  It is not yet clear what specific assurances the General Counsel will suggest or propose to ensure employees understand their attendance at meetings to discuss unionization is completely voluntary. 

As it stands today, the NLRB precedent established in the Babcock & Wilcox Co. case remains intact, but the memorandum foreshadows that General Counsel Abruzzo will be submitting one or more cases to the Board in the near future to attack that precedent through the NLRB litigation process.

There will be more to come on this important topic.  As this situation develops, employers should exercise caution and confer with counsel before holding captive audience or other meetings to discuss unionization with employees.  For any questions about this topic, please do not hesitate to contact Roy Galewski, Taylor Ventre or the Harris Beach attorney with whom you typically work.    

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