A directive from the general counsel of the National Labor Relations Board could spell the end of captive audience meetings, removing one of most potent weapons used by employers to derail union organizing drives.
In a memo this month, Jennifer Abruzzo asked the board to rule that the mandatory meetings are a violation of the 1935 National Labor Relations Act.
“This license to coerce is an anomaly in labor law,” Abruzzo said. “It is inconsistent with the Act’s protection of employees’ free choice and based on a fundamental misunderstanding of employers’ speech rights.”
It is the latest in a series of game-changing moves by Abruzzo and the board to restore and expand worker protections after decades of attacks that reached new levels of anti-worker hostility during the last administration.
NLRB case precedent has “tolerated such meetings,” but the Act itself is unambiguous, she said, citing sections 7 and 8 that are the basis of all unfair labor practice complaints.
“Forcing employees to listen to such employer speech under threat of discipline — directly leveraging [their] dependence on their jobs — plainly chills employees’ protected right to refrain from listening,” she said.
Section 7 guarantees the right of workers to join unions and bargain collectively. Section 8 makes it illegal for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” and lists in explicit detail what that includes.
“The language in the law is crystal clear,” said Jammi Ouellette, director of Professional/Industrial organizing. “It is infuriating to think about how flagrantly employers violate it. They’ve gotten away with it for decades with minimal consequences, if any, because the courts and even the NLRB at times have interpreted it too loosely.
“Now we’ve got an NLRB that is on the offense like never before against employer abuses, and captive audience meetings are the union-buster’s number one weapon,” she said. “Sitting through a captive audience meeting is psychological torture. Most of our future members sit through them daily during an organizing effort.”
The federal initiative comes as a ban on captive audience meetings is poised to become law in a second state. In a 23-11 vote last week, the Connecticut Senate passed the Protecting Employee Freedom and Conscience Act to ban employers “from coercing any employee into attending or participating in a meeting concerning the employer's views on political or religious matters.”
The Connecticut House is taking up the bill this week. A similar law has been in place since 2010 in Oregon, where the Worker Freedom Act prohibits “firing, punishing or threatening workers who refuse to sit for ‘employer-sponsored’ meetings” that are held to convey religious or political views, which includes union organizing.
The Oregon law survived a federal court challenge filed two years ago by the NLRB itself during the era of the board’s virulently anti-union general counsel Peter Robb, who Joe Biden fired on his first day in office.
Studies show that captive audience tactics are nearly universal among employers whose workers seek to organize. With union campaigns making headlines daily at some of the nation’s most prominent companies, banning the meetings could be especially significant now,
The NLRB reports that union representation petitions more than doubled between Oct. 1, 2021, and March 31, 2022 — rising to 1,174 from the 748 filed during the same period the previous fiscal year.
Reversing precedent will require the board to rule on new case related to captive audience meetings. Abruzzo’s memo said she is preparing a brief on a case for the board to consider.
She is seeking to forbid the meetings in two situations involving anti-union speech: when workers are “forced to convene on paid time” or are “cornered by management while performing their job duties.”
“In both cases, employees constitute a captive audience deprived of their statutory right to refrain, and instead 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,” Abruzzo said.
Her April 7 memo has generated no shortage of hyperbole from management-side attorneys and journals claiming the NLRB is infringing on employers’ free speech.
Imposing the “long-overdue protection of employees’ right to refrain will not impair employers’ statutory or constitutional freedom of expression,” Abruzzo argues. She cited a 1944 Supreme Court ruling that said while employers are within their First Amendment rights to persuade workers regarding unions, coercion is over the line.
But the courts were awash at the time with cases attacking the NLRA’s prohibition on forced attendance. Overall, the rulings weakened the provision years before the Taft-Hartley Act of 1947 eroded other workplace rights.
One of the principal case involved the IBEW and workers trying to unionize at Virginia Electric & Power Co. in 1940, as cited in a 2004 law journal’s report on captive audience meetings.
The NLRB ruled in the employees’ favor, finding that company speeches and bulletins unlawfully interfered with their organizing drive. However, the Fourth Circuit refused to enforce the board’s order, a decision the Supreme Court affirmed.
Report author and labor lawyer Elizabeth J. Masson, called the anti-worker ruling a “watershed in labor law, signaling that employers need not remain neutral during the union election process.”
“Coming just six years after the NLRA's enactment, the Court's holding was in stark contradiction to Congress' declared national labor policy of encouraging the procedure of collective bargaining as essential for a free and democratic society,” she said.
Some 80 years later, International President Lonnie R. Stephenson said, the pendulum is finally swinging back in its intended direction.
“President Biden pledged to be the most pro-worker, pro-union president we’ve ever seen,” he said. “The actions of the people he’s appointed to protect workers — at the NLRB, the Department of Labor and across his administration — are proof of it.”