NLRB GC Seeks Dramatic Change to Employer’s Right to Speak to Employees About Unionization at Work

For many years, employers had been free to collect staff to talk about – in a non-coercive method – the employer’s views on unionization, and had been free to share with staff what staff’ rights have been with respect to the identical.  Earlier at this time, the NLRB Normal Counsel issued a memorandum declaring her intent to try to overturn this practically 75 years of Nationwide Labor Relations Board precedent concerning an employer’s skill to communicate to staff.  In GC Memorandum 22-04, issued on April 7, 2022, argues that obligatory “captive audience” conferences and even easy one-on-one conversations throughout work are unlawfully coercive.

The Normal Counsel’s initiative is the newest in a protracted line of latest initiatives relationship again to final August, beforehand mentioned in this house – nonetheless, this specific change was not beforehand outlined by the GC in her most up-to-date memo (in August 2021) outlining her enforcement priorities.

The Normal Counsel’s Idea

The Normal Counsel refers to the present legality of such conferences as an “anomaly” that’s “contrary to the basic principles of labor law,” specifically, in that such conferences are opposite to the NLRA’s safety of “employees’ right to listen as well as their right to refrain from listening to employer speech concerning the exercise of their Section 7 rights.”

The Normal Counsel means that such conferences are sometimes held underneath the specter of self-discipline, specific or implied, by advantage of an inherent pitting of staff’ reliance on employers for his or her livelihoods in opposition to these rights.  In different phrases, the Normal Counsel means that staff who skip such conferences could worry retribution from their employer.  Accordingly, underneath the Normal Counsel’s concept, such conferences fall outdoors the realm of constitutionally-protected free speech due to an alleged illegal coercive impact.

In fact, Board legislation has been settled since 1948 on the legality of such conferences, beginning with the Board’s resolution in Babcock & Wilcox Co., 77 NLRB 577 (1948).  There, the Board held that an employers’ compelling attendance at such conferences doesn’t violate the Act.

Going ahead, the Normal Counsel means that employers should clarify that staff’ attendance is actually voluntary, related to a Johnnie’s Poultry warning given to staff when an employer is investigating and getting ready to defend in opposition to an unfair labor apply cost.

What Comes Subsequent?

As we’ve got famous earlier than, a Normal Counsel Memorandum doesn’t change the legislation the least bit.  Nonetheless, it does sign that the Normal Counsel will probably be trying to carry a “test” case to the NLRB for a ruling within the close to future.  Certainly, the Normal Counsel said that she’s going to ask the Board to take into account its precedent on this space in “appropriate cases,” and likewise said that “a brief will be submitted to the Board shortly” on the topic.  At that time, the Board will determine whether or not to overturn over seventy years of precedent, with appeals doubtless to observe.

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