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The Bargaining Table

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On April 7, 2022, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued what may be her most pro-union directive to date - and that’s saying something.

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In GC Memorandum 22-04, Abruzzo announced her intention to seek a ban on employer mandatory meetings during union organizing campaigns, commonly referred to as “captive audience meetings.” According to Abruzzo, captive audience meetings are coercive, in and of themselves, because they “inherently involve an unlawful threat” to employees if they exercise their allegedly “protected” right under the National Labor Relations Act (NLRA) “not to listen” to their employer’s message.

Abruzzo’s proposal would trample well-settled, decades-old NLRB precedent and strip employers of their right to free speech under Section 8(c) of the NLRA (not to mention an obscure, little-known enactment colloquially referred to as “the First Amendment”). Section 8(c) explicitly protects an employer’s right to express “any views, argument, or opinion” to its employees, provided such expressions do not contain threats or promises of benefits. Abruzzo’s proposal for a blanket prohibition on captive audience meetings—regardless of the message being conveyed—would destroy this important right and prevent employees from hearing both sides of the story in a campaign.

Moreover, Abruzzo offers no guidance as to how her newfound right not to listen under the NLRA will apply in cases where employees do not wish to be solicited for their support of a union. If employees truly have an NLRA-protected right not to listen, will employers have the right—or even the obligation—to prohibit employees from engaging in repeated and unwelcome union solicitation? Call us crazy, but that does not seem like an outcome Abruzzo is likely to support despite her apparent enthusiasm for finding new rights in the NLRA.

TAKEAWAY: At this point, GC Memo 22-04 is only a warning shot, albeit a clear one, that NLRB regional offices around the country may seek to prosecute unfair labor practice charges against employers for holding captive audience meetings. But with the current union-friendly makeup of the NLRB, its not a stretch to think that its members will agree with Abruzzo’s position. Thus, this issue is almost certain to be decided by a U.S. Court of Appeals given the substantial statutory and constitutional rights that are at issue. Stay tuned!

NLRB General Counsel Seeks to Outlaw Employer Use of Captive Audience Meetings