Why the labor board wants to free 'captive' workers from bosses' messaging

5 minute read

The seal of the National Labor Relations Board (NLRB) is seen at their headquarters in Washington, D.C. REUTERS/Andrew Kelly

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  • Law review article

(Reuters) - The top prosecutor at the agency that enforces national labor laws announced on Thursday that she would move to overturn long-standing precedent that allows employers to force workers to attend anti-union meetings, seeking to blunt one of U.S. businesses’ most potent weapons against worker organizing.

The central argument is simple: The law on this issue has been misinterpreted almost from the beginning, and in a manner that undermines the basic underlying principles of labor relations law.

Jennifer Abruzzo, the National Labor Relations Board’s general counsel, said that she will urge the Democratic-led board to make it unlawful for managers to “corner” workers on the job or force them to attend so-called captive audience meetings.

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Glenn Spencer, senior vice president of employment policy at the U.S. Chamber of Commerce, told me the move is inconsistent with precedent and “an overreach.” Spencer questioned Abruzzo’s characterization of the meetings as naturally coercive.

The mandatory meetings “inherently involve an unlawful threat that employees will be disciplined” or retaliated against if they don't attend or if they leave -- and current law actually permits businesses to follow through on those implied threats, Abruzzo wrote. “That license to coerce is 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.”

It’s a well-supported proposition.

The labor board held in 1946 that captive audience meetings discussing unionization were per se (inherently) unlawful, shortly after enactment of the National Labor Relations Act, Roger Hartley wrote in a 2010 law review article on employees’ “freedom not to listen.” Hartley is a law professor at the Catholic University of America Columbus School of Law.

But that interpretation was short-lived.

Big businesses complained that the board was restricting free speech, and lawmakers accepted their protests with hardly any serious interrogation, according to the legislative record. Congress amended the NLRA just a year later, in 1947, adding that the “expressing of any views, arguments or opinion” can’t be considered an unfair labor practice.

That new provision, Section 8 (C), was in turn interpreted in a one-line statement of law, when the board held in 1948 that it means captive audience meetings are permissible.

But a “close examination of the legislative history reveals no basis for such a conclusion,” Hartley wrote. And the clause itself says nothing at all about mandatory meetings during work hours.

As a general matter, the NLRA lays out an official U.S. policy to encourage unionization. It gives workers the right to self-organize for “mutual aid,” and to join a union if they choose. And it restricts employers from interfering with or coercing employees exercising those rights, although they are free to express opposition to unions.

Many organizers, academics and practitioners, and even union-avoidance consultants agree that captive audience meetings are likely the most powerful tool businesses use to stifle organizing.

They have been standard practice for the overwhelming majority of employers facing union campaigns for at least two decades, and businesses now spend about $340 million a year on anti-union consultants to help defeat worker organizing.

Amazon held captive audience meetings six days a week during an aggressive anti-union campaign to counter recent organizing, for example. The internet retail giant spent more than $4 million on labor consultants in 2021 alone, Reuters reported on April 1.

Matthew Finkin, a professor at University of Illinois College of Law, told me employers use captive audience meetings because they are effective.

“It’s a very powerful psychological weapon, and there’s a lot of good social science evidence that shows that,” he said.

Indeed, research has even shown some correlation between the number of captive audience meetings and the likelihood of defeating a campaign, Hartley wrote in the 2010 paper.

Of course, for most employees, the coercive effects of a mandatory meeting where bosses ask you to do something is self-evident. Recordings of anti-union meetings during the Amazon campaign show some workers perceived a clear threat based on the very fact of the meetings, and considered the advice against unionizing – the standard management position – unfair, if not unlawful, according to a March 25 report by New York news website THE CITY.

The basic policy underlying the NLRA then – encouraging unionization – is a solid basis for overturning the current, contradictory interpretation.

Abruzzo’s central argument rests on the law, though: The board simply reached the incorrect conclusion in 1948 and fundamentally misunderstood employers' speech rights.

The plain language of Section 8(C) only shields employer views “if such expression contains no threat of reprisal of force,” or any “promise of benefit.”

“The question is ‘does captive audition restrain, coerce or interfere in employees’ rights?’” Finkin said. Section 8(C) “is about the expression of opinions – what you say,” but Abruzzo’s action “is about where and when you can say it, and that’s different.”

Put differently, the provision says employers can express anti-union ideas if they please, but it doesn’t require the NLRB to let them to do so in captive audience meetings (or any other coercive manner). Abruzzo’s proposal still leaves room for businesses to convince workers not to organize via the many channels typically available -- phone calls, texts, snail-mail, email, flyers on break-room walls, and so on.

Finally, the NLRB’s prevailing interpretation seems based on a misunderstanding.

The U.S. Supreme Court in Thomas v. Collins in 1945 affirmed that the First Amendment protects employers seeking to persuade employees but that it doesn't cover coercion, Abruzzo’s memo points out.

The “Constitution's free speech guarantees simply do not provide any person the freedom to coerce listening,” Hartley wrote in the 2010 article.

Still, employers have enjoyed the privilege for decades, because of the federal government’s acquiescence, as acknowledged both by Hartley’s article and Abruzzo’s memo.

The proposed changes to the law are long overdue.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com