Another One Bites the Dust

NLRB General Counsel intends to dump key employer tool

May 27, 2022

For over 68 years, the National Labor Relations Board (NLRB) has recognized the right of employers and unions to hold captive audience speeches. NLRB General Counsel Jennifer Abruzzo has made it clear she intends to ask the Board to no longer allow captive audience meetings, effectively changing how employers have addressed union campaigns for the last 6+ decades.

Captive Audience Rule

The captive audience rule has been in place since 1953, when the NLRB issued its decision in Peerless Plywood Company and decided what the rules should be in election cases with respect to captive audience speeches. A captive audience speech is one held on company time to massed assemblies of employees by either the employer or a union, a tool used by employers in the vast majority of cases.

In Peerless, the Board noted that in its experience with conducting representation elections, “last minute speeches by either employers or unions delivered to mass assemblies of employees on company time have an unwholesome and unsettling effect and tend to interfere with the sober and thoughtful choice which a free election is designed to reflect.” The real vice in captive audience speeches was the last minute character of the speech. Such a speech, because of its timing, tended to create a mass psychology that overruled arguments made through other campaign media and gave unfair advantage to the party who effectively got in the last word.

Consequently, in Peerless, the Board adopted what has been the rule for the last 68 years, which is that employers and unions alike are prohibited from making election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election. A violation of the rule would cause the election to be set aside if valid objections were filed.

In further explaining itself, the Board stated that implicit in this rule was its view that the combined circumstances of the use of company time for pre-election speeches and the delivery of such speeches on the eve of the election tended to destroy freedom of choice and to establish an atmosphere in which a free election couldn’t be held. It went on to note, however, that also implicit in the rule was its judgment that noncoercive speeches made before the prescribed period wouldn’t interfere with a free election in as much as the rule would allow time for the effect to be neutralized by the impact of other media of employee persuasion.

Since Peerless, employers have had the right to assemble their employees on company time and in a noncoercive manner to share with its employees its thoughts regarding union representation. This is a frequently used tool for the employer to share its beliefs with its employees, such as unions do when they hold meetings with employees at the local union hall.

Reversing Course

Now, the General Counsel has declared that the rationale of the NLRB back in 1953 was simply wrong. She believes that forcing employees to attend captive audience meetings under the threat of discipline discourages them from exercising their right to refrain from listening to the speech and is therefore inconsistent with the National Labor Relations Act (NLRA).

The General Counsel asserts that the Board incorrectly concluded an employer doesn’t violate the Act by compelling its employees to attend meetings in which it makes speeches. Instead, she contends the meetings are commonly used to make explicit or implied threats to force employees to listen to speeches about unionization or other statutorily protected activity.

As a result, General Counsel Abruzzo is urging the Board to correct what she considers to be this anomaly and proposing that it adopt “sensible assurances” that an employer must convey to employees to make it clear that attendance at meetings is voluntary. This will effectively rewrite what the laws and countless practices have been over the last 68 years.

Bottom Line

You can no longer assume the types of things you have been allowed to do legally for decades are still appropriate. As we have seen time and time again, the Board is continuing to make efforts to rewrite rules and practices that have been in place for the entire career of many seasoned labor law practitioners. Consequently, you should be mindful of not only the current state of the law but also the current labor climate in its day-to-day practices, as well as any representation proceedings.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.