Executive Summary: In an April 7, 2022 memo from the NLRB, General Counsel Jennifer Abruzzo (“Abruzzo”) announced her intent to challenge employers’ long-standing practice of holding informational meetings regarding union organizing (which she calls “captive audience” meetings).
In the memo, Abruzzo first takes issue with circumstances in which employees are required to convene for meetings on paid time. But perhaps more significant, Abruzzo also takes issue with circumstances where an employee “is cornered by management while performing their job duties.”
In Abruzzo’s view, both circumstances deprive employees of their “statutory right to refrain,” and she urges the Board to reconsider current precedent and find “meetings” of this sort unlawful––an outcome that could have a long-lasting impact on employers.
What is the Current Precedent?
During organizing efforts, employers routinely convene meetings during working time to address and educate their employees on topics such as:
- Their statutory labor rights, including the right to refrain from forming unions.
- The NLRB election process.
- The legal significance of having signed a union authorization card.
- The impact of electing an exclusive collective bargaining representative to speak on their behalf.
- Restrictions on the ability of the employer and employees to resolve any differences through an open-door policy.
- The fact that the union may have made promises about what it will achieve in the collective bargaining process without explaining that the union cannot deliver on any such promises absent agreement by the employer.
- The potential impact of a strike or work stoppage on employees.
- The significance of the secret-ballot vote.
For nearly 75 years, the NLRB has held that these types of mandatory group informational meetings are a lawful exercise of employer free-speech rights in the absence of other prohibited conduct. This longstanding support dates back to its 1948 decision in Babcock & Wilcox, which issued just one year after Congress amended Section 8(c) of the NLRA to incorporate employer free-speech protections.
What Effect Does Abruzzo’s Memo Have on Current Precedent?
General Counsel memoranda (“GC memos”) are issued as a means of advancing proposed legal doctrine through policy guidance. While GC memos do not represent the official legal position of the NLRB, they do represent the policy and guidance for all Regional offices investigating and prosecuting charges against employers. Moreover, General Counsel Abruzzo intends to ask the NLRB to reconsider its current precedent on mandatory group informational meetings in appropriate cases, including in a brief that soon will be submitted to the board.
What Effect Could the Memo Have on Employers?
If the NLRB decides to overrule its 75-year precedent, it will have dramatic implications on employers’ rights under the NLRA during organizing campaigns, including, but not limited to the following:
- mandatory group informational meetings will be unlawful;
- because the memo also calls out other forms of meetings when, according to Abruzzo, employees are “cornered by management while performing their job duties,” safety or training meetings, and even conversations between employees and supervisors while walking the floor, could be called into question if they mention unionization;
- employers will be at risk of committing unfair labor practices unless their campaign strategies are adjusted according to new precedent;
- employers may be forced to seek alternative forms of communication and education to exercise their statutory labor rights during union organizing campaigns; and
- employers will be required to provide assurances to employees that attendance at their various meetings is voluntary.
Bottom Line: It is unclear if or when the Board will heed General Counsel Abruzzo’s call. But if it does, because the issue raises constitutional/First Amendment issues, ultimately it is likely to make its way to the Supreme Court––guaranteeing a long road of uncertainty ahead for employers.
In the meantime, employers can undoubtedly expect to be on the receiving end of ULP charges and even election objections alleging violations of Abruzzo’s new theory in an effort to advance it to the Board.
With the Biden Administration’s increased focus on expanding union membership throughout the country, employers should consult with their legal counsel and labor relations teams as they consider options for responding to union organizing campaigns and generally educating their workforce regarding rights under the NLRA.
If you have any questions regarding General Counsel Abruzzo’s memo and its effects, or any other recent or upcoming changes from the Biden Administration NLRB, please contact the authors of this Alert, Henry Warnock, partner in FordHarrison’s Atlanta office at hwarnock@fordharriosn.com, and Mollie Wildmann, mwildmann@fordharrison.com, senior associate in our Memphis office. Of course, you can also contact the FordHarrison attorney with whom you usually work.