Not So Captive, Captive Audience Meetings
Every year, April brings surprises for the unwary — typically in the form of an April fool’s joke. By way of example, this past April 1st, I nearly had a heart attack when I awoke to a purportedly fake post depicting the Titans trading away AJ Brown (a post that eventually proved to be more fact than fiction). But this past April, employers were treated to an additional April surprise in the form of Memorandum GC 22-04 (the “Memorandum”) from the General Counsel of the National Labor Relations Board (“NLRB” or the “Board”), Jennifer Abruzzo.
While the simple act of a Board GC issuing a memo likely came as no surprise to most employers, the substance of Memo GC 22-04 likely did. That’s because, in the memo, Abruzzo stated her intent to call on the Board to do away with “captive audience” meetings: a term used to refer to mandatory meetings held by employers in which it has an opportunity to share its views regarding unionization with its workforce. Employers have been holding captive audience meetings for over 70 years, ever since the Board condoned the practice in Babcock & Wilcox Co. in 1948. Despite the longevity and generally widespread acceptance of the practice, the Memorandum states that captive audience meetings are per se unlawful under the National Labor Relations Act (“NLRA”), as they “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if [employees] exercise their protected right not to listen to such speech.”
Especially notable is the breadth of interactions that the Memorandum’s definition of captive audience encompasses. Traditionally, the term has been used to refer to meetings of larger groups of employees, but the Memorandum also asserts that inherently unlawful and implicit threats exists when employees “are cornered by management while performing their job duties.”
Within a few days of issuing the Memorandum, Abruzzo filed a brief with the Board, asking it to overturn Babcock & Wilcox Co. and find that captive audience meetings (including the “cornered employees” mentioned above) are per se unlawful, and that employers are only allowed to engage in such encounters provided they take certain steps. With respect to “convened employees” (i.e., employees gathered for a formal meeting), employers must explain the purpose of the meeting and assure employees that attendance is voluntary, that they are free to leave at any time, that nonattendance will not result in reprisals, and that attendance will not result in rewards or benefits. Similarly, with respect to “cornered employees,” employers must explain the purpose of the encounter and assure employees that participation is voluntary, and that there are no benefits or reprisals for participating or not participating in the encounter.
Although it’s not certain that the Board will adopt the views on captive audience meetings espoused in the Memorandum, employers would be wise to give thought about how they would address union organizing efforts in the future, especially if captive audience meetings (a concept that may be broadly defined) are prohibited.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.