by Since 1948, the National Labor Relations Board (NLRB) has taken the position that employers may require employees to attend meetings during paid work time to explain management opposition to unionization. The NLRB is the federal agency charged with enforcing federal laws on establishing unions in private industry. On April 7, 2022, the NLRB’s General Counsel issued a memorandum to the agency entitled “The Right to Refrain from Captive Audience and Other Mandatory Meetings.” In the memo, the General Counsel stated she would advise the NLRB to reverse its position on the legality of employers being able to require employees to attend meetings to hear the employer’s view of unionization. She will seek to have the NLRB find that employers may not require employees to participate in such meetings during work time nor have management discuss unionization while the employees perform work duties.
The National Labor Relations Act (NLRA) gives both employees and employers the right to express their opinions regarding the pros and cons of unions. The NLRB and the courts have emphasized that an employer may not coerce or appear to coerce employees while communicating the employer’s point of view. Over the years, the NLRB and the courts have decided cases interpreting the employer’s communication rights and have placed limitations on how the employer expresses its opinions during union organizing campaigns. Under these rulings, employers may not:
- Promise or grant benefits to employees (such as wage increases, holidays, benefits, or improvements in working conditions) to encourage employees to vote against or abandon a union.
- Make threats based on employee support of a union, including threats of discharge, layoffs, plant closure, or discontinuing current benefits.
- Interrogate employees or prospective job applicants concerning union-organizing activities.
Coercing or appearing to coerce employees during a union organizing effort is taken very seriously by the NLRB and the courts. For example, holding one-on-one meetings with employees in a supervisor’s office to discuss unions has been found to have the appearance of coercion. It has formed the basis for invalidating a union election that had rejected unionization. Required group meetings, on the other hand, where employers describe current benefits, compare company wages and benefits to those of other unionized and nonunionized companies in their industry, and provide facts on the organizing and election process have consistently been upheld as lawful. The General Counsel takes the position that this interpretation of the law is incorrect and that requiring employees to attend meetings is coercive.
The General Counsel’s April 7, 2022 memorandum is only advice and guidance to the NLRB. It is neither law nor regulation. It signals an intent on the part of the General Counsel to seek a change in NLRB interpretation of the laws governinging union organizing and concerted activities by employees but does not necessarily reflect the opinions of the Board itself. The memorandum can be found on the NLRB website at https://www.nlrb.gov/guidance/memos-research/general-counsel-memos.
