On April 7, 2022, General Counsel (GC) Jennifer A. Abruzzo released Memorandum 22-04, The Right to Refrain from Captive Audience and other Mandatory Meetings. As set forth in the memorandum, GC Abruzzo will urge the National Labor Relations Board (NLRB or the Board) to hold that captive audience meetings are unlawful and doing so is “necessary to ensure full protection of employees’ statutory labor rights.” Relatedly, GC Abruzzo also states she will work to ensure that employees understand that their attendance at employer meetings is “truly voluntary.”

By way of background, Section 8(c) of the National Labor Relations Act (NLRA or the Act) states:

the expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act [subchapter], if such expression contains no threat of reprisal or force or promise of benefit.

The ability of employers to communicate their views on unionization to employees is a long-standing right that preserves an employer’s free speech entitlement to communicate its views to its employees. The Board has consistently upheld the right of employers to require employees on company time to attend meetings to hear the employers’ views opposing unionization, since the 1948 decision in Babcock & Wilcox Co.¹

While GC Abruzzo has been a vocal critic of captive audience meetings generally, this recently released memorandum reaffirms her position. In the memorandum, Abruzzo states that the Board in Babcock & Wilcox Co., “incorrectly 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.” According to GC Abruzzo, captive audience meetings are a tactic by employers to “forc[e] employees to listen to . . . employer speech under threat of discipline—directly leveraging the employees’ dependence on their jobs . . . .” Such tactics, according to GC Abruzzo, “plainly chills employees’ protected right to refrain from listening to this speech in violation of Section 8(a)(1).”

Further, GC Abruzzo states that she will “urge the Board . . . to hold that, in two circumstances, employees will understand their presence and attention to employer speech concerning their exercise of Section 7 rights to be required[.]” Specifically, when employees are “(1) forced to convene on paid time or (2) cornered by management while performing their job duties.”

The Protecting the Right to Organize (PRO) Act, which is currently stalled in the Senate, encompasses more than 50 significant changes to current law and seeks to overhaul the NLRA for the first time in more than 70 years. One of the most significant proposed changes in the PRO Act is the prohibition on an employer’s ability to require employees to attend meetings regarding its views on unionization.

Because Senate Democrats do not currently have enough votes to pass the PRO Act, there had been speculation the Biden administration would look for alternative avenues to implement changes without passing the legislation. The GC’s memorandum appears to be implementing that strategy.

Conclusion

The general counsel’s memorandum is significant because she makes the initial decision whether or not to issue complaints, based upon policies established by the NLRB. By claiming authority to issue complaints against employer conduct that has been declared by the Board to be legal for more than 70 years, the general counsel may be overstepping her authority.