For more than 70 years, employers have had the right to call “captive hearing” meetings with employees about their statutory rights at work, including the right to refrain from forming unions. On April 7, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo announced in a memo that she would ask the NLRB to declare such mandatory meetings illegal.
Thomas Payne, an attorney at Barnes & Thornburg in Indianapolis, described the memo as “a thinly veiled attempt to make union organizing easier by removing a tool employers have to ensure employees are fully informed of their rights and how the organizing process works.”
“To succeed,” he added, “Abruzzo will have to convince a majority of the board to ignore decades of precedent.”
Meetings with a captive audience can serve as a suitable counterbalance to arguments advanced by organized work outside the workforce and sometimes in employees’ homes, which are generally prohibited to employers in this context, noted Reyburn Lominack III, attorney at Fisher Phillips in Columbia, SC “Because the employer generally pays employees for their time at these meetings, they have long been recognized as a legal extension of free speech rights in the absence of statements or inappropriate conduct,” he said.
Thomas Servodidio, an attorney at Duane Morris in Philadelphia, said captive audience meetings allow employers to educate employees on topics such as:
- The NLRB election process.
- The legal significance of signing a union authorization card, which may not have been fully explained by the union when employees were asked to sign the cards.
- The impact of the election of an exclusive collective bargaining representative to speak on one’s behalf on terms and conditions of employment, with the resulting loss of one’s individual voice in the workplace.
- Restrictions on the ability of the employer and employees to resolve any disputes through an open door policy, as opposed to a more formal grievance mechanism defined in a collective agreement and controlled by the union.
- The compromise of the bargaining process that occurs when the employer and the union seek to negotiate a collective agreement, which could include the union giving up some current benefits and privileges to get something the union wants.
- The fact that the union was able to make promises about what it will get in the collective bargaining process without explaining that it cannot keep any of these promises without the employer’s agreement.
- The potential impact of a strike or work stoppage on employees if the union calls a strike to pressure the employer into accepting union bargaining demands.
- The importance of voting by secret ballot in the upcoming elections.
- The importance of voting in the election since the outcome of the election is based on the majority of votes cast.
An employer speech covering this information cannot be delivered within 24 hours of a union election, noted Steven Horowitz, an attorney with the Horowitz Law Group in Far Hills, NJ “These meetings are a good opportunity for an employer to say “We hear you. … We may have taken our eyes off the ball. … Give us the opportunity to prove it to you. If we don’t, you can always file your petition again,” he noted, saying there should be an open forum for questions and answers.
“But coercive and threatening speech is not allowed by management or unions,” Horowitz added.
Memo from Abruzzo
The NLRB has long recognized that national labor relations law protects employees’ right to listen – as well as their right to refrain from listening – to employer speech regarding the exercise of their rights under of the law to organize or refrain from organizing,” Abruzzo wrote in the memo.
“Forcing employees to listen to such employer talk under threat of disciplinary action – directly taking advantage of the employee’s dependence on their job – clearly chills employees’ protected right to refrain from listening to this speech,” she wrote. “The fact that a threat arises in the context of employer speech does not immunize its unlawful coercive effect. The Supreme Court has made it clear that threats do not fall within the statutory and constitutional freedom of speech of employers. “
She said the board erroneously concluded years ago that an employer was not breaking the law by requiring its employees to attend meetings at which it made speeches urging them to reject union representation.
“As a result, employers routinely use express or implied threats to coerce employees into meetings regarding unionization or other legally protected activities,” she wrote. “And the board allows employers to carry out those threats by firing or sanctioning employees who exercise their right to refrain from listening by failing to attend or leave these mandatory meetings. This license to compel is a anomaly in labor law, incompatible with the protection of the free choice of employees by law and based on a fundamental disregard of the employers’ right of expression.
Abruzzo said she will recommend that the NLRB adopt “reasonable assurances that an employer must convey to employees to clarify that their attendance is truly voluntary.”
The ability of employers to exercise their right to express their opinions on labor matters, so long as that expression does not contain a threat or promise of benefit, would be hindered by this restriction, according to Payne.
“For example, employers will often discuss these types of issues in already scheduled meetings – which, like any other work meeting, attendance would be mandatory – but Abruzzo’s restriction would mean that an employer could not discuss work issues at normally scheduled meetings, but rather should schedule a separate voluntary meeting for these matters,” he said. “This creates an unnecessary restriction, especially in light of the fact that the law has already put in place adequate protections.
“Abruzzo is also challenging the circumstances in which an employee ‘is cornered by management in the performance of their duties.’ This is quite vague and would be very difficult for employers to understand.”
For example, if a supervisor approaches an employee to give a work-related instruction but the employee brings up work issues, “should the supervisor refuse to respond to the risk that this will be perceived as a meeting illegal? Payne asked.
Abruzzo concluded by saying she would ask the NLRB to reconsider its current precedent on mandatory meetings where appropriate, including in a brief to be submitted to the board soon.