NLRB General Counsel Memo States Intent to Make Captive Audience Speeches Unlawful

Nationwide Labor Relations Board (NLRB) General Counsel (GC), Jennifer Abruzzo, has issued a memorandum stating her intent to search to change the NLRB’s longstanding rule permitting employers to maintain obligatory conferences throughout union election campaigns. Whereas the Memorandum, GC 22-04 (April 7, 2022), doesn’t in itself change the legislation, it does imply the GC will likely be on the lookout for a check case through which to persuade the NLRB to change its long-established precedent on the subject.

Part 8(c) of the Nationwide Labor Relations Act, which ensures an employer’s proper to communicate concerning union points, has lengthy been understood to authorize so-called “captive audience” conferences. Abruzzo’s proposed categorical prohibition would severely hamper this necessary proper and complicate employer efforts to current counterarguments to staff.   

In 1948, the NLRB held that Part 8(c) prevented it from concluding that an employer dedicated an unfair labor observe by conducting a compulsory assembly concerning union organizing efforts. Babcock & Wilcox, 77 NLRB 577 (1948). With minor changes to prohibit conferences within the final 24 hours earlier than the election, the NLRB has persistently upheld the precept that “captive audience” speeches should not themselves a foundation for an unfair observe cost or an election objection. The rule has been adopted no matter whether or not the NLRB consisted of a majority of Republican or Democratic appointees.

Regardless of this almost 75-year-old precedent, the GC has characterised Babcock as wrongly determined, and an “anomaly.” The memorandum suggests the GC will encourage the NLRB to undertake a revised algorithm that prohibit employers from holding obligatory conferences of staff to talk about union points and to require the employer to clarify that attendance at any conferences through which union points will likely be mentioned is completely voluntary. 

The GC additional proposes to apply the identical rule to any dialog initiated by the employer throughout working time. This concept is premised on the notion {that a} obligatory assembly or a dialogue throughout paid work time would intervene with the worker’s putative proper to “refrain from listening” to the employer’s marketing campaign statements. 

The memorandum places employers going through a union organizing marketing campaign between the proverbial rock and laborious place. At present, the legislation supplies that obligatory conferences to talk about the employer’s viewpoint are permissible, and these types of conferences are one of many simpler mechanisms employers have for countering union marketing campaign guarantees and propaganda. Nonetheless, continued use of “captive audience” conferences or discussions throughout work time will doubtlessly draw a cost from the GC or an objection to any election the employer wins. As a result of the NLRB makes legislation by adjudication, quite than by issuing guidelines, it might take a minimum of a yr, (or probably extra) for the check case to work its manner by to an NLRB resolution and sure attraction to the courts ought to the GC achieve success. Employers could thus be left in authorized limbo for an prolonged interval.  

The dilemma created by the memorandum doesn’t admit to straightforward decision. Employers will need to think about how a lot they want obligatory quite than voluntary conferences in a selected marketing campaign and whether or not different technique of communication can successfully get the employer’s message out. In some circumstances, using the captive viewers conferences should be well worth the threat offered by the GC’s place, however employers ought to interact in such conferences with a full appreciation of the chance.

Source link