Employers will be wise to review a memorandum issued by the National Labor Relations Board’s (“NLRB”) general counsel last week regarding employer speech at mandatory employee meetings.
It has long been recognized that the National Labor Relations Act (“NLRA”) protects employees’ right to listen to – or refrain from listening to – employer speech concerning their rights to collectively act to improve their workplace. In fact, forcing employees to attend captive-audience meetings under threat of discipline has been held to discourage employees from exercising their right to refrain from listening to this speech and is therefore inconsistent with the NLRA.
And yet, years ago, the NLRB had concluded that an employer does not violate the Act by compelling its employees to attend meetings in which it makes speeches urging them to reject union representation. As a result, employers commonly used explicit or implied threats to force employees into meetings about unionization or other statutorily protected activity.
Last week’s memorandum seeks a clarification of this policy. The NLRB’s most recent memo states, “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.” In addition, the memo also seeks to outlaw instances where employees are “cornered by management” while performing their jobs to talk to them about unionization.
These types of meetings are a common feature across many organizing campaigns, particularly for employers who would prefer not to have a unionized workforce. While labor unions have long denounced the practice as coercive, it is anticipated that any move to curb the use of mandatory workplace meetings will face monumental opposition from the business lobby and right-to-work groups, particularly given the concerns about regulatory corporate speech rights.
The NLRB’s general counsel signaled that she is preparing a formal brief that will be submitted for the board members’ consideration, so we are sure to see further developments on this issue in the future.