National Labor Relations Board General Counsel Jennifer Abruzzo issued Memorandum 22-04 on April 7, taking the position that mandatory meetings held by employers addressing Section 7 activity are unlawful—including meetings in response to union organizing—and announced her intention to prosecute employers who hold these meetings during her tenure in office.
For almost 75 years, the National Labor Relations Board (NLRB) has permitted employers to hold mandatory meetings during working time in which employers explain their position on unionization. Such meetings often occurred in the days and weeks prior to an NLRB secret-ballot election. There has been no legal debate, at least for decades, over the lawfulness of these meetings—labeled “captive audience meetings”—if unaccompanied by other coercion or restraining conduct. The issuance of Memorandum 22-04 (GC Memo 22-04) will have a profound impact on employers’ communication plans regarding unionization and related issues going forward.
GC MEMO 22-04
General Counsel Abruzzo argues that employers “directly leverag[e] the employees’ dependence on their jobs” when requiring employees to attend any meeting where Section 7 activity is discussed. As such, she argues, requiring attendance at meetings where any form of Section 7 activity is discussed “plainly chills employees’ protected right to refrain from listening to this speech.”
The General Counsel advocates for an NLRB decision rendering mandatory meetings unlawful whenever employees “(1) forced to convene on paid time or (2) cornered by management while performing their job duties” are “compelled to [attend such meetings] by threat of discipline, discharge, or other reprisal,” regardless of whether any threats are made.
The General Counsel suggests that an employer could avoid prosecution by making clear to employees that attendance/listening is voluntary and, accordingly, she will ask the NLRB to “adopt sensible assurances” that employers can give to employees. However, there are no specifics provided of what “assurances” she would find “sensible.” Employers will need to create suitable language on their own, and now, if they wish to avoid prosecution.
CONTRARY LEGAL PRECEDENT
The General Counsel’s novel theory to restrict employers in how they communicate with employees during working time will face numerous precedential and statutory hurdles. This may cause some employers to challenge any unfair labor practice prosecutions under this theory. These hurdles include the following:
- Section 8(c) of the National Labor Relations Act (NLRA) codifies an employer’s right to “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, [which] shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.” 29 USC § 158(c) (emphasis added).
- Supreme Court precedent prohibits the regulation of non-coercive speech concerning labor issues because the NLRA “favor[s] uninhibited, robust, and wide-open debate in labor disputes.” See Chamber of Commerce of US v. Brown, 554 US 60 (2008) (quotation omitted).
- Additional Supreme Court precedent specifically casts doubt on the proposition that mandatory meetings alone are violative of the Act. See NLRB v. Virginia Electric Power Co., 314 US 469, 472-73, 479 (1941) (remanding unfair labor practice finding to the NLRB, opining “we find it difficult to sustain a finding of coercion with respect to the [speeches and bulletin] alone” where the “Company . . . [had] directed its employees to select representatives to attend meetings at which Company officials would speak on the Wagner Act [and] [t]hese representatives . . . were addressed by high Company officials, who read identical speeches . . .”).
- There is a broader First Amendment/free speech concern with content-specific restrictions. By way of analogy, would it be lawful for Congress to pass a law banning companies from discussing with their employees during company-paid time the company’s position on economic issues, such as inflation, for example?
- Well-established NLRB decisions dating back to 1948 permit employers to hold mandatory meetings during an organizing campaign to discuss their views on unionization. See Babcock & Wilcox Co., 77 NLRB 577 (1948).
ADDITIONAL UNANSWERED QUESTIONS
GC Memo 22-04 provides few details concerning the scope of conduct that General Counsel Abruzzo would consider lawful or unlawful. Examples of such unanswered questions include:
- How much discussion of “union” or Section 7 issues will trigger the illegality of a captive-audience meeting?
- Say, for example, a union campaigns following a workplace fatality, in which an employee died based on the failure to comply with safety requirements, and the entire focus of the campaign involves the union’s repeated claim that the employer had no safety standards. Would the employer violate the law, as outlined in GC Memo 22-04, by holding a mandatory safety meeting, during which the employer explained what occurred, educated employees regarding the safety standard that existed, and the only reference to the union was a sentence in which the employer stated, “I know that the [XYZ Union] has stated that this employee died because the Company had no safety requirements in place. That statement is wrong.”
- What if employees engage, not in union campaigning, but in Section 7-protected conduct, such as making demands of the employer for workplace improvements?
- Does the employer lack the authority to call the employees together to respond to, or even discuss, their demands? If not, how does that comport with the purpose of the NLRA to resolve workplace disputes and promote industrial peace?
- What if an employer only provides factual information at the meeting, and otherwise takes no explicit position or seeks to persuade employees on the Section 7 activity at issue?
- Say, for example, the employer presents only indisputably correct statements about (1) how much money the union collected in dues the preceding year, (2) how many strikes occurred in the preceding five years that the union sponsored, and (3) the fact that collective bargaining can cause wages and benefits to go up, go down, or stay the same? How could this be deemed to violate Section 8(a)(1)—which makes it unlawful “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7”—or Section 8(a)(3)—which makes it unlawful “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization”?
GC Memo 22-04 represents a substantial departure from almost 75 years of NLRB case law permitting employers to hold mandatory meetings to discuss unionization and related issues. For this position to prevail, it would need to overcome considerable statutory and Supreme Court and NLRB precedent. The General Counsel has yet to formally assert and detail this position in a pending case before the NLRB, but Morgan Lewis will continue to monitor any developments.
In the meantime, employers should review their current or planned practices with “mandatory meetings” that discuss Section 7-related issues and consider a potential verbal and/or written disclaimer that participation, even during working time, is voluntary until further notice. Employers also should review their other communication methods that target employees while working to avoid allegations of employees being “cornered” into listening to employer speech against their will.
If you have questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Harry I. Johnson, III
Mark L. Stolzenburg
Robert E. Sheeder
Nicole A. Buffalano
Douglas R. Hart
Joseph C. Ragaglia
Daniel P. Bordoni
David R. Broderdorf
Jonathan C. Fritts
Philip A. Miscimarra