National Labor Relations Board Says No More Mandatory Captive-Audience Meetings

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On November 13, the National Labor Relations Board (the Board) held that so-called captive-audience meetings — meetings where employers require employee attendance and argue against unionization — violate the National Labor Relations Act (NLRA). In issuing this decision, the Board struck down a 76-year-old precedent that permitted companies to lawfully hold these types of meetings during organizing campaigns.

Facts and the Holding

This case arose when employees began organizing at two of a company’s locations and, in response, the company held a series of mandatory meetings urging its employees to reject union representation. This type of employer response to unionization certainly is not unprecedented. In fact, employers have been able to lawfully compel employees to attend meetings where the employer expresses anti-union views since the Board’s decision in Babcock v. Wilcox Co., 77 NLRB 577 (1948). But for now, this is no longer the case.

In its latest ruling, the Board expressly rejected Babcock v. Wilcox and held that captive-audience meetings violate Section 8(a)(1) of the NLRA. First, the Board reasoned that captive-audience meetings “impinge on an employee’s Section 7 right to choose, free from any employer coercion, the degree to which [they] will participate in the debate concerning representation.” Second, the Board opined that captive-audience meetings can serve as a “mechanism for employers to observe and surveil employees as they address the exercise of employees’ Section 7 rights.” Third, the Board reasoned that, just as employees were compelled to attend the captive-audience meeting, employees may also reasonably conclude that “they do not have free choice concerning union representation.”

The Board underscored that this holding makes no distinctions based on viewpoint. Regardless of whether the employer is telling its employees to vote for the union, the Board explained that it is not the employer’s viewpoint that is offensive to the NLRA. Instead, it is the “employer’s use of its power to require employees to listen to its views” that is unlawful. The Board also concluded that neither Section 8(c) of the NLRA nor the First Amendment entitles employers to hold captive-audience meetings.

Moving Forward

While this decision is a dramatic shift from how employers are used to addressing union campaigns, the Board did establish a safe harbor that allows employers to still express their views on unionization during working hours without violating Section 8(a)(1).

In order to avail itself of this safe harbor, an employer must inform its employees that: (1) the employer intends to express its views on unionization at a meeting where attendance is voluntary; (2) employees will not be subject to discipline, discharge, or any other consequences for not attending or leaving; and (3) the employer will not keep records of those employees who attend, fail to attend, or leave.

The Board ruled that its ban on captive-audience meetings will only be applied to cases prospectively and not retroactively.

Steptoe & Johnson’s Labor Relations Team is familiar with union elections and can help you navigate union campaigns, avoid unfair labor practices, and more. If you have any questions about this recent NLRB decision or how it might affect you, please contact the authors of this alert.