On April 7, 2022, in a move that could dramatically alter long-established employer tactics in union organizing campaigns, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum announcing that she will ask the Board to find what are commonly known as “captive audience” meetings to constitute an unfair labor practice (ULP) under the National Labor Relations Act (NLRA).

Abruzzo explained that mandatory meetings in which employees are exposed to the employer’s messaging on unions “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.”  Abruzzo further reasoned that the Board has long recognized that the NLRA protects employees’ right to listen — as well as their right to refrain from listening — to employer speech concerning the exercise of NLRA Section 7 rights (protecting an employee’s freedom to join or not join a union or engage in other protected, concerted activity).  She further said that the Board was wrong in its consistent rulings that an employer does not violate the NLRA merely by utilizing mandatory meetings to communicate its opinion on labor matters in a union organizing campaign or otherwise.

The General Counsel will urge the Board to find violations of Section 8(a)(1) of the NLRA when:  (1) employees are required to convene in groups on paid time; or (2) employees are spoken to by  management representatives while performing their job duties – where the subject involves topics related to the exercise of employees’ Section 7 rights.  In both instances, the General Counsel stated employees “constitute a captive audience, deprived of their statutory right to refrain,” and that employees will reasonably perceive a threat of discipline if they do not attend or listen to the employer’s message, even if the threat is not explicitly stated.

Abruzzo argued that banning captive audience meetings will not impair employers’ freedom of expression, because their attempts to persuade employees are still protected by the NLRA’s free speech provisions.  The General Counsel cited to the Supreme Court case of Thomas v. Collins for the proposition that the First Amendment does not protect employer speech when “other things” are added to the persuasion to bring about coercion.  323 U.S. 516 (1945).  However, Thomas dealt with the validity of a prior restraint on the speech of a labor organizer after he failed to register with the state, in violation of a Texas statute.  Thomas does not discuss captive audience or mandatory meetings, and the opinion does not otherwise suggest these are inherently coercive.

The General Counsel proposed that the Board should require employers to convey clearly to employees that their attendance at meetings regarding their labor rights is truly voluntary.  Captive audience meetings have long been an important tool in the toolbox of an employer facing an organizing campaign, or wishing to forestall one with preemptive employee communications.  The General Counsel issued the memorandum following years of union arguments that these mandatory meetings violate employee rights under the NLRA and is one more indication of the strong, pro-labor stance adopted by the Biden Administration.

Ballard Spahr’s Labor and Employment Group advises employers regularly on how to navigate communication and negotiation with their employees in the context of organizing campaigns.