A memorandum sent to National Labor Relations Board (NLRB) field offices calling for an end to mandatory meetings in which employees must listen to an employer’s side during a union campaign points to more union-friendly actions to come, according to attorneys who advise employers on labor matters.
The NLRB on April 7 announced the memorandum in which Board General Counsel Jennifer Abruzzo says she will ask the Board to find mandatory “captive audience” meetings a violation of the National Labor Relations Act (NLRA).
The NLRA grants employees the right to listen to or refrain from listening to employer speech concerning workers’ rights to act collectively to improve their workplace.
‘Move Was Not Unexpected’
Abruzzo’s move was not unexpected and likely won’t be the last such action, according to Richard I. Lehr, an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C. in Birmingham, Alabama.
“Since the PRO Act did not even get to the Senate floor for a vote, I expect the Board to implement parts of that bill, similarly to changes made by the Obama Board,” Lehr says. The Protecting the Right to Organize (PRO) Act would make a captive audience meeting an unfair labor practice and includes other protections for workers trying to unionize.
Gary Fealk, an attorney with Bodman PLC in Troy, Michigan, also says Abruzzo “will seek to take other positions contrary to existing precedent.”
NLRB Case Precedent Refuted
Abruzzo maintains that requiring employees to attend captive audience meetings under threat of discipline discourages employees from exercising their right to refrain from listening to employer speech related to union campaigns.
In her memo, Abruzzo says the Board has for years incorrectly concluded that an employer does not violate the NLRA by compelling employees to attend meetings where workers are urged to reject unionization.
“I believe that the NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language, and our congressional mandate,” Abruzzo’s memorandum says. Therefore, “I plan to urge the Board to reconsider such precedent and find mandatory meetings of this sort unlawful.”
Board In Search of Test Cases?
Lehr says employers’ right to have captive audience meetings has existed since 1948, and the impact of Abruzzo’s memorandum will be that the NLRB regions will evaluate whether an unfair labor practice charge over the meetings should proceed to complaint and then to trial, eventually going before the Board to consider reversing the 1948 precedent.
Fealk says Abruzzo’s memo puts employers on notice she is looking for test cases to argue that 70-plus years of precedent should be overruled.
“It is expected that test cases will be brought quickly as captive audience speeches are an effective and commonly used tool by employers to get information to employees about unionization,” Fealk says. “However, a test case could take years to wind its way through Board proceedings and appeal to a court of appeals.”
In addition to changing precedent through case decisions, the NLRB may choose to make changes through rulemaking, which Lehr says “would be faster than waiting for a case to evolve, but it also would be subject to litigation.”
Advice For Employers
Lehr and Fealk say employers don’t need to change their practices now.
“Stay the course until such time that the law actually changes,” Fealk says. “This is just an announcement to seek to change over 70 years of precedent. While employers must make their own decisions on tolerance for fighting unfair labor practice charges, refraining from giving captive audience speeches in response to an organizing campaign will greatly reduce the employer’s chance of getting its message to employees and decrease the chance of winning an election.”
Lehr also says employers should continue captive audience speeches, but if an employee refuses to attend, the individual should continue working and not be disciplined for choosing not to attend.
“Although during a union campaign captive audience meetings often focus only on the union, I think that if those meetings are included with other topics, such as safety or a business update, it will be more difficult for the Board to pursue allegations of an illegal captive audience speech, and employees are less likely to refuse to attend,” Lehr says.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
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