For almost 75 years, one of the inviolable tools available to companies contesting a union-organizing campaign has been the captive audience meeting. However, the general counsel for the National Labor Relations Board has taken dead aim at this tool and asked the Board to call such meetings unlawful under the National Labor Relations Act.
Such a result would have far-reaching implications for private sector employers throughout the US and, during the interim, creates considerable uncertainty for those companies.
Captive audience meetings are compulsory meetings conducted by the company. Employees are paid for their time attending the meeting and are required to attend or face discipline.
They are typically conducted on-site and may include the entire workforce or a segment of it. In the context of a union-organizing campaign, the company will typically use the meetings to explain its position and its concerns regarding unionization.
In 1948, the Board decided the Babcock & Wilcox case. Prior precedent had held that an employer violated the Act when it held compulsory meetings concerning union representation. The Board, however, took the opportunity to chart a new course, rejecting existing doctrine and holding that compulsory attendance at these meetings was not an unfair labor practice.
To some extent, the Board’s adherence to Babcock & Wilcox has been supported by an employer’s First Amendment right to free speech, including its right to campaign against union organizers.
The permission to conduct captive audience meetings is not without limits. Board precedent has evolved to forbid captive audience meetings within 24 hours of a Board-conducted representation election.
And generally speaking, the company is not allowed to coerce employees from exercising their Section 7 rights under the Act by, among other things, threatening them for supporting a union, promising them something if they reject a union’s advances, or interrogating them regarding their union activities or allegiances.
Push for Change
Last spring, the Board’s general counsel took the position that captive audience meetings are unlawful and that Babcock & Wilcox was wrongly decided.
While general counsel memoranda are not binding, she has since advocated for overruling Babcock & Wilcox in the Cemex Construction Materials Pacific case currently being litigated before the Board. Other unfair labor practice charges on the subject have also been filed.
In Cemex, the general counsel argued that captive audience meetings are unlawful because there is an objective threat of retaliation—discipline—for refusing to attend/participate, which impairs employees’ exercise of their Section 7 rights under the Act.
The general counsel broadly construes captive audience meetings to include both “convened employee” and “cornered employee” meetings. The convened employee meeting is the traditional format of mandatory speeches to groups of employees during a union organizing campaign, while the cornered employee meeting is a more spontaneous, less formal individual or small-group meeting that occurs while the employees are performing their job duties.
According to the general counsel, an unlawful captive audience meeting is any meeting concerning Section 7 activity, including not just traditional large group meetings but also more spontaneous individual or small group meetings that occur while employees are performing job duties.
While she acknowledged that routine meetings generally do not interfere with Section 7 rights, her broad construction of a captive audience meeting potentially implicates a wide range of routine employer/employee encounters.
Consider a safety meeting to discuss responses to a recently identified safety concern. If an employee had raised that concern to their employer, and it was applicable to a group of employees, the employee’s actions are arguably protected by Section 7 of the Act as concerted activity for mutual aid or protection.
Thus, the safety meeting seemingly concerns Section 7 activity, and the logical extension of the general counsel’s position is that the company cannot mandate attendance at the safety meeting.
Further, she argues that so long as an employee would reasonably understand the meeting to be about the exercise of Section 7 rights, the reasonable employee is free to skip the meeting without employer recourse.
The result is that virtually any meeting with “convened” or “cornered” employees is potentially unlawful if there is an apparent nexus to Section 7 activity or even if an employee believes the meeting touches on Section 7 activity. That leaves employers in a tenuous position.
While captive audience meetings are lawful today, their protected status could be retracted imminently. If the Board’s future decision is made retroactive to pending cases, as it has done in the past, the employer holding a lawful captive audience meeting today will have nevertheless committed an unfair labor practice.
The jeopardy is doubled because the general counsel’s interpretation of what is an unlawful captive audience meeting is so broad that the employer has little concrete guidance to evaluate whether a meeting implicates Section 7 rights.
In short, companies are in the unenviable position of having to weigh the legal risks and practical benefits of captive audience meetings generally, and more specifically whether the meeting somehow invokes an employee’s Section 7 rights and may therefore be illegal at some indeterminate time in the future.
For now, at least, employers have little choice but to proceed with due caution or make the unpalatable choice of making all captive audience meetings voluntary.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Michael Pavlick is a partner in the Pittsburgh office of K&L Gates. He concentrates his practice in labor and employment law, including representation of clients before the National Labor Relations Board and the National Mediation Board, collective bargaining, arbitrations conducted pursuant to labor contracts, and union elections and campaigns.