In an article published in the November 23, 2021, edition of this newsletter, “NLRB General Counsel Issues ‘GC Memos’ Calling for Expansive Remedies in ULP Cases, Settlements,[1]” I discussed the pro labor policy changes advocated by NLRB General Counsel Jennifer A. Abruzzo. Since that time, Abruzzo has issued additional General Counsel Memos (GC Memo), including her most recent GC Memo 22-04, dated April 7, 2022, titled “The Right to Refrain from Captive Audience and other Mandatory Meetings.”[2] In GC Memo 22-04 Abruzzo advocates for the end of employer directed Captive Audience meetings which are common especially during union representation election campaigns.[3]   

By way of background, in the early days of the National Labor Relations Act (Act) the U.S. Supreme Court in NLRB v. Virginia Electric & Power Co., recognized that neither “the Act nor the Board's order here enjoins the employer from expressing its view on labor policies or problems, nor is a penalty imposed upon it because of any utterances which it has made.”[4] Later, the Board in Clark Bros. Co., Inc. found it was an unfair labor practice for an employer to compel employees to attend a meeting during work time on the employer’s premises to hear the employer’s views against union representation.[5] Soon thereafter, Congress repudiated the Board’s ruling in Clark Bros when it enacted the Taft-Hartley Act in 1947 that added Section 8(c)[6] to the Act which states:

(c) Expression of views without threat of reprisal or force or promise of benefit

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 subchapter, if such expression contains no threat of reprisal or force or promise of benefit.

In 1948, in Babcock & Wilcox Co.[7], the Board made clear that it was not a violation of the Act for an employer to compel employees to attend meetings on worktime where the employer’s view on unionism was discussed. In so holding, the Board stated, “the language of Section 8 (c) of the amended Act, and its legislative history, make it clear that the doctrine of the Clark Bros. case no longer exists as a basis for finding unfair labor practices in circumstances such as this record discloses.” [8]

Later, the Board “devised the ‘Bonwit Teller[9]’ doctrine [that held] while the speech was protected by 8(c), an employer who made a privileged speech was guilty of an unfair labor practice if he denied a request by the union to reply on his time and property.” This doctrine was set aside in Livingston Shirt Corp. [10] where the Board held:

Accordingly, we are convinced that, absent special circumstances as hereinafter indicated, there is nothing improper in an employer refusing to grant to the union a right equal to his own in his plant. We rule therefore that, in the absence of either an unlawful broad no-solicitation rule (prohibiting union access to company premises on other than working time) or a privileged no-solicitation rule (broad, but not unlawful because of the character of the business), an employer does not commit an unfair labor practice if he makes a preelection speech on company time and premises to his employees and denies the union's request for an opportunity to reply.[11]

A limited time, place, and manner restriction during representative elections was placed on Captive Audience speeches by the Board in Peerless Plywood Co. Under the Peerless Plywood rule, “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…. [v]iolation of this rule will cause the election to be set aside whenever valid objections are filed.”[12]

Turning to GC Memo 22-04, Abruzzo characterizes Captive Audience Meetings as “inherently involv[ing] an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech” and Board precedent is “at odds with fundamental labor-law principles, our statutory language, and our congressional mandate.”[13]

Abruzzo cites Section 7 of the Act as the basis for her argument that the Board should reconsider the legality of Captive Audience meetings and deem them unlawful under Section 8(a)(1) of the Act that “bars employers from interfering with employees’ choice of whether and how to exercise those rights.” She also argues the “inequality of bargaining power between individual employees and their employers,” and the “economic dependence on their employers” should guide the Board in reconsidering Captive Audience meetings.

Abruzzo essentially calls for a return to the pre-Section 8(c) Clark Bros. decision that viewed Section 7 rights as “meaningless …unless employees are also free to determine whether or not to receive” the employer’s views on unionism,[14] and criticizes the Board’s Babcock & Wilcox Co. decision as “an anomaly in labor law, inconsistent with the Act’s protection of employees’ free choice and based on a fundamental misunderstanding of employers’ speech rights.”[15] She concludes by stating that she intends to urge the Board hold as follows:

[I]n two circumstances, employees will understand their presence and attention to employer speech concerning their exercise of Section 7 rights to be required: when employees are (1) forced to convene on paid time or (2) cornered by management while performing their job duties. In both cases, employees constitute a captive audience deprived of their statutory right to refrain, and instead are compelled to listen by threat of discipline, discharge, or other reprisal—a threat that employees will reasonably perceive even if it is not stated explicitly. Inherent in the employment relationship is the understanding that employees cannot, without consequences, either fail to accede to their employer’s stated requirement (e.g., that they attend a meeting) or abandon their assigned work duties (e.g., by walking away from employer speech directed at them as they work).[16]

Take Aways

The latest GC Memo calls on the Board to overturn nearly 75 years of precedent which is grounded in the First Amendment and Section 8(c) of the Act which protects non-coercive employer speech. Further, the Memo ignores the requirement the Board balance “employees' Section 7 rights and employers' management interests.”[17] While a Biden Board may turn out to be receptive to Abruzzo’s call to end Captive Audience meetings, it is questionable whether any Court of Appeals would enforce such an order.

Greg Grisham is an Attorney in the Memphis Office of Fisher & Phillips LLP and focuses his practice on counseling and representing employers in all aspects of labor and employment law. Greg may be reached at ggrisham@fisherphillips.com or 901-333-2076.