Employers are allowed to talk to their employees. That’s common sense, right? Not to the NLRB. It wants to eliminate a company’s right to talk to employees about unions.
For almost 75 years, employers faced with a union organizing campaign have been able to discuss with their employees the pros and cons of unions, the truth about working with a union, and the company’s position on unions. So long as the company did not make any threats or promises, ask employees who is for or against unions, or coerce employees from exercising their right to join a union, the company was allowed to speak freely.
In 2022, the National Labor Relations Board’s General Counsel Jennifer Abruzzo issued a memorandum to all NLRB Field offices announcing she would ask the Board to “find mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, including captive audience meetings” a violation of the National Labor Relations Act. See, NLRB website for the press release (https://bit.ly/3W0CtPm).
The press release is complete with quotes from the General Counsel like:
This license to coerce is an anomaly in labor law, inconsistent with the Act’s protection of employees’ free choice. It is based on a fundamental misunderstanding of employers’ speech rights. 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. Because of this, I plan to urge the Board to reconsider such precedent and find mandatory meetings of this sort unlawful.
Again, this law has been around for 75 years.
A week after the press release, the NLRB found a case, Cemex Construction Materials Pacific, to effectuate the change to the law. While most of this activity occurred several months ago, the NLRB has yet to rule on Cemex. I expect the ruling any time. Soon captive audience meetings will likely be unlawful.
The impact of a ruling that holds captive audience meetings unlawful is multi-faceted. Any meeting with employees where the employee feels cornered or compelled to attend is potentially unlawful if there is a nexus to the employee’s rights under Section 7 of the NLRA.
These types of meetings happen all the time and have nothing to do with union organizing. Section 7 is broad and protects employees when acting as a group (or on behalf of a group). A meeting convened to discuss safety issues, equitable distribution of overtime, and workplace policies are just a few examples of meetings that employees are required to attend that have a nexus with their Section 7 rights but nothing to do with union organizing.
For employers faced with actual union organizing, captive audience meetings are paramount in expressing the employer’s (as of now lawful) views of unions and the reality of life as a union member.
The elimination of these meetings will effectively force employers into de facto neutrality agreements with unions where employees will only hear one side of the story, the union’s side. Employers that enter neutrality agreements have employees vote for union representation roughly 80% of the time.
The Cemex case is not on the radar of most business owners or human resource departments. But this is just one more example of how the current NLRB is helping unions to organize employees one small change at a time. So far it seems to be paying off.
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Matt Austin is a nationwide management labor lawyer. Labor laws govern virtually all private-sector employees regardless of union membership. Proactive management of labor relations is critical to maintaining flexibility and increasing profit.
Matt also runs Austin Legal’s HR Legal Compliance Program that, for a small monthly fee, ensures HR decisions are protected by the attorney-client privilege.
Matt’s experience is deeply rooted in helping manage many aspects of his clients’ businesses. To effectively manage labor relations, he must also manage budgets, forecasts, new growth areas, and projected market corrections. High emotional intelligence is also critical to negotiating union contracts and to properly advise HR Legal Compliance members through the nuances of the law, its application to their companies, and how it will be received by employees.
You can reach Matt via email at Matt@MattAustinLaborLaw.com.