ANOTHER ONE BITES THE DUST: NLRB General Counsel looks to modify captive-audience rule

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For more than 68 years, the National Labor Relations Board has recognized the right of employers and unions to hold captive-audience speeches. NLRB General Counsel Jennifer Abruzzo has made it clear she intends to ask the board to no longer allow captive-audience meetings, effectively changing how employers have dealt with union campaigns for the past six decades or so.

Captive audience rule

The captive-audience rule has been in place since 1953, when the NLRB issued its decision in Peerless Plywood Company and decided what the rules should be in election cases with respect to captive-audience speeches. A captive-audience speech is one held on company time to massed assemblies of employees by either the employer or a union, a method used by employers in the vast majority of these cases.

In Peerless, the NLRB noted that in its experience with conducting representation elections, “last minute speeches by either employers or unions delivered to mass assemblies of employees on company time have an unwholesome and unsettling effect and tend to interfere with the sober and thoughtful choice which a free election is designed to reflect.” The real vice in captive-audience speeches was the last-minute character of the speech. Such a speech, because of its timing, tended to create a mass psychology that overruled arguments made through other campaign media and gave unfair advantages to the party that got in the last word.

Consequently, in Peerless, the NLRB adopted what has been the rule for the last 68 years, which is that 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. A violation of the rule would cause the election to be set aside if valid objections were filed.

In further explaining itself, the NLRB stated that implicit in this rule was its view that the combined circumstances of the use of company time for pre-election speeches and the delivery of such speeches on the eve of an election tended to destroy freedom of choice and to establish an atmosphere in which a free election couldn’t be held. It went on to note, however, that also implicit in the rule was its judgment that noncoercive speeches made before the prescribed period wouldn’t interfere with a free election in as much as the rule would allow time for the effect to be neutralized by the influence of other media of employee persuasion.

Since Peerless, employers have had the right to assemble their employees on company time and, in a noncoercive manner, to tell employees thier thoughts regarding union representation. This happens, say, when unions hold meetings with employees at the local union hall.

Reversing course

Now, the general counsel has declared that the rationale of the NLRB back in 1953 was simply wrong. She believes that forcing employees to attend captive-audience meetings under the threat of discipline discourages them from exercising their right to refrain from listening to the speech and is therefore inconsistent with the National Labor Relations Act.

The general counsel asserts that the NLRB incorrectly concluded an employer wouldn’t be violating the act by compelling employees to attend meetings in which it makes speeches. Instead, she contends the meetings are commonly used to make explicit or implied threats to force employees to listen to speeches about unionization or other statutorily protected activity.

As a result, Abruzzo is urging the NLRB to correct what she considers to be this anomaly and proposing that it adopt “sensible assurances” that an employer must convey to employees to make it clear that attendance at meetings is voluntary. This will effectively rewrite what the law and countless practices have been over the last 68 years.

Bottom line

You can no longer assume that various things you have been allowed to do legally for decades are still appropriate. As we have seen time and time again, the NLRB is continuing to try to rewrite rules and practices that have been in place for the entire career of many seasoned labor-law practitioners. Consequently, you should be mindful of not only the current state of the law but also the current labor climate in its day-to-day practices, as well as any representation proceedings.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

This article was reposted here with permission from Axley Attorneys.