Regulatory Topic: EMU/Captive Audience Meetings
Regulatory Agency: NLRB
For decades, federal law has granted and the National Labor Relations Board (NLRB) has supported the ability of employers to hold meetings with employees on the topic of worker rights and decision making around union elections and membership. However, NLRB General Counsel Jennifer Abruzzo issued a memorandum, GC 22-04, The Right to Refrain from Captive Audience and other Mandatory Meetings, on April 7, 2022, stating her desire to make certain required employer meetings “unfair labor practices,” or ULPs.
If the NLRB proceeds with a plan to enforce this proposed approach such as through a rule or a case decision, businesses across America will lose legal rights to communicate important information to workers about unionization, and potentially other issues, during paid working hours even as unions enjoy many privileges in communicating with workers on and off the job.
Background and Summary:
The NLRB, formed as part of the 1935 National Labor Relations Act (NLRA), oversees private sector union elections and related matters across the United States. By using labor cases brought before the board or advancing new rules, the NLRB can attempt to enforce new policies that American workers and businesses must comply with, including by attempting to limit the legal right of employers to communicate important information about unionization to employees, which would create major changes to employer-employee relations and workplace speech.
Labelled as so-called “captive audience” meetings by some that seek to limit employer speech including Abruzzo, employer meetings on unionization (EMUs) with workers have been supported by law, the NLRB, and courts for 75 years, making Abruzzo’s memorandum a concerning and potentially major change if acted upon.
Vincent Vernuccio, President of I4AW, succinctly describes EMUs and their purpose:
“In response to a unionization drive or the threat of one, an employer gathers together all workers during normal office hours to discuss unionization. In these meetings, employees learn about their rights and the employer conveys their view of how a union would impact company operations.
Employers are legally prohibited from interrogating, threatening, or making promises during union organizing efforts, which is when many of these EMUs occur. By contrast, unions have little to no restrictions on their speech, including what they can promise to potential members, making the need for EMUs even more important.”
“[Expression of views without threat of reprisal or force or promise of benefit] The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act [subchapter], if such expression contains no threat of reprisal or force or promise of benefit.”
Following the new law, the NLRB in its 1948 Babcock and Wilcox Co case officially confirmed its acceptance of EMUs, which has been maintained to this day.
Abruzzo in her memorandum highlights two instances where she believes workers should not be required to listen to employers: “when employees are (1) forced to convene on paid time or (2) cornered by management while performing their job duties.” In reality, these two examples are open ended in many ways. Neutral meetings merely outlining union laws and procedures could violate new policies. As some hypothesize, even employer required meetings around non-union issues could be considered germane to union-related issues by the NLRB, such as mandatory safety meetings since that subject matter could theoretically be bargained over in a union workplace. As such, even impromptu discussions over various matters at the workplace between employers/management and employees could also be deemed as workers being “cornered by management” as framed by Abruzzo.
In other words, Abruzzo’s desired NLRB policy changes, which are also mirrored in the harmful PRO Act legislation championed by President Joe Biden and Democratic congressional leaders, could subject employers and workers into constant concern that even normal workplace meetings and interactions would no longer be tolerated in many instances.
What is the Concern Around Employer Meetings, and How Does the Public Feel?
Many union leaders may argue that EMUs are union-busting practices and coercive in nature, but employers use meetings at the workplace to share and receive viewpoints and information with employees, which is an important process for workers to be able to better consider the pros and cons of unionization at their workplace and how their employers feel. After all, once a workplace is unionized, there is little dispute that the workplace and communication between workers and employers changes significantly.
Recent polling conducted by I4AW indicates the American public, especially union members, is favorable to allowing EMUs. Given a description of mandatory employer meetings, 41% of all respondents had a positive opinion, and only 12% had a negative one. Among union members, 59% had a positive opinion and just 10% a negative one. Not surprisingly, union members and the general public are sympathetic to the notion that employers have a right to communicate with their workforce and that workers benefit from understanding the perspective of their employers before making major decisions on unionization.
Brief NLRB Employer Meetings on Unionization Timeline:
- 1941 (NLRB) – Labor Board v. Virginia Elec. & Power Co., 314 U.S. 469 (1941). In this case, the NLRB clarified the right of employers to be able to express their viewpoints on unionization with employees.
- 1947 – Taft Hartley/Labor Management Relations Act. This law modified the NLRA, ensuring that employer meetings on unionization during paid work hours can be required so long as workers are not made promises, threatened, or interrogated by employers in such meetings.
- 1948 – The Babcock and Wilcox Co., 77 N.L.R.B. 577 (1948). Since this point the NLRB has accepted EMUs in acknowledgement of the Taft-Hartley law.
- 1953 (NLRB) – Peerless Plywood Co., 107 N.L.R.B. 427 (1953). Established that employer meetings and other forms of communication on union stances cannot be shared by employers within 24 hours of a union election.
- 2016 (NLRB) – Guardsmark, LLC(05-RC-143199; 363 NLRB No. 103). In this decision, the NLRB established that in elections with mail-ballots, EMUs could be held within 24 hours of ballots being mailed.
- Voters agree: There’s nothing wrong with employer meetings on unionization. Vincent Vernuccio. Washington Times. https://www.washingtontimes.com/news/2022/oct/12/voters-agree-theres-nothing-wrong-with-employer-me/
- Polling Results for Employer Meetings on Unionization. Institute for the American Worker. https://i4aw.org/resources/polling-results-for-employer-meetings-on-unionization/
- Workers Should Be Able to Hear from Both Sides Before Union Votes. Sean Higgins. CEI. https://cei.org/blog/workers-should-be-able-to-hear-from-both-sides-before-union-votes/
- Section 8(c) of the National Labor Relations Act: Giving It Meaning. Mercer Law Review. https://digitalcommons.law.mercer.edu/cgi/viewcontent.cgi?article=2208&context=jour_mlr
- NLRB General Counsel Wants to Make ‘Captive Audience’ Meetings Illegal. Allen Smith. SHRM. https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/nlrb-general-counsel-wants-to-make-captive-audience-meetings-illegal.aspx
- What Happens if NLRB Cuts Captive Audience Meetings. Michael Pavlick. Bloomberg. https://news.bloomberglaw.com/us-law-week/what-happens-if-nlrb-cuts-captive-audience-meetings
- PRO ACT SERIES: CAPTIVE AUDIENCE MEETINGS. EVAN ARMSTRONG, KYLLAN KERSHAW and JOSEPH VENTO. Retail Industry Leaders Association. https://www.rila.org/blog/2022/04/pro-act-series-captive-audience-meetings