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NLRB General Counsel Seeks to Abolish Captive Audience Meetings
Early Thursday—April 7, 2022—General Counsel for the National Labor Relations Board (“Board”), Jennifer Abruzzo, released a memorandum signaling to the Regional Offices across the country to process unfair labor practice charges that implicate what are known as “captive audience” meetings. In brief, this Memo is an effort to ultimately convince the Board to ban these meetings and overturn over seventy-five (75) years of precedent.
Under the National Labor Relations Act (“NLRA”), as interpreted by the courts and the Board, employers have been permitted to hold captive audience meetings at work. During these meetings—which have become a standard practice among employers during union organizing campaigns—employee attendance can be mandatory, and employers are permitted to discuss the ramifications of unionizing. In a maneuver likely designed to circumvent the traditional rulemaking process, Abruzzo appears to be signaling to the Board, and unions across the country, that they now have the opportunity to upend this decades-long precedent.
In her Memo, Abruzzo argues that these types of meetings “inherently involve…unlawful threat[s].” She then asserts that the Board’s 75 years of case precedent is at odds with “fundamental labor-law principles,” “statutory language,” and the Board’s “congressional mandate”—ostensibly condoning this employer behavior as inherently threatening. Based upon these beliefs, Abruzzo will “urge the Board to reconsider current precedent and find mandatory meetings of this sort unlawful.”
Challenges to the legality of captive audience meetings are not necessarily new. Recently, unions have begun launching attacks against employers for holding such meetings by framing them as unfair labor practices in which employers “interfere with, restrain, or coerce” workers exercising their rights to act collectively. In a nod to this argument, Abruzzo cites to this language in her memo and further states that “the Board must keep in mind the basic ‘inequality of bargaining power’ between individual employees and their employers[.]” Abruzzo plans to shortly release further guidance and a legal brief on the matter.
For now, employers can anticipate an influx of challenges to these types of meetings, and a willingness by the Board to see them through. While there will likely be significant backlash from the business community and right-to-work advocates on the matter, we can expect this issue to take the fast track to the courts—of which its fate is uncertain. During this period, Obermayer will continue to update you as developments become available, particularly when an official brief is submitted to the Board for consideration. As always, Obermayer’s Labor and Employment attorneys are prepared to answer any questions you may have and to help you navigate this shifting landscape.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.