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NLRB General Counsel Jennifer Abruzzo Issues Memo on Captive Audience and Other Mandatory Meetings

On April 7, 2022, the National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum (GC Memo 22-04) to all Field offices announcing that she will ask the Board to find mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, including captive audience meetings, a violation of the National Labor Relations Act (NLRA).

General Counsel Abruzzo explains that the Board has long recognized that the NLRA protects employees’ right to listen to or refrain from listening to employer speech concerning their rights to act collectively to improve their workplace. Forcing employees to attend captive audience meetings under threat of discipline discourages employees from exercising their right to refrain from listening to this speech and is therefore inconsistent with the NLRA.

The memo explains that years ago the NLRB 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. As a result, employers commonly use explicit or implied threats to force employees into meetings about unionization or other statutorily protected activity.

The General Counsel states that she will urge the NLRB to correct that anomaly and propose they adopt sensible assurances that an employer must convey to employees in order to make clear that their attendance at these meetings is truly voluntary, as this type of approach will appropriately protect employers’ free-speech rights to express views, arguments, or opinions concerning the employees’ exercise of their protected labor rights without unduly infringing on the rights of employees to refrain, or not, from listening to such expressions.

Next Steps for Employers

GC Memo 22-04 provides few details concerning the scope of conduct that General Counsel Abruzzo would consider lawful or unlawful, but the memorandum may have significant implications for employers who are facing or may face an organizing campaign in the future in terms. Specifically, related to their communication plans regarding unionization and related issues going forward. However, it does not appear that the memorandum is limited to “mandatory” meetings during an organizing campaign. The General Counsel has yet to formally assert and detail this position in a pending case before the NLRB, and it can be argued that this position may in fact exceed statutory authority and NLRB precedent, but employers may wish to review their current or planned practices with “mandatory meetings” that discuss Section 7 related issues and ensure that it is clearly communicated (verbally and in writing) that attendance at any such meetings are “voluntary”, even during working time, until further notice.

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