NLRB Memo on Captive Audience Meetings

On April 7th, 2022, the National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum asking the NLRB to find mandatory captive audience meetings a violation of the National Labor Relations Act (NLRA). In brief, captive audience meetings are mandatory meetings during work hours through which employers inform employees of statutory labor rights. Specifically, this can include speaking on the right of employees to refrain from forming or joining unions. Effectively, Abruzzo takes the position that the forced attendance nature of captive audience meetings is inconsistent with the NLRA. Previously, in November 2021, the NLRB was part of a federal, joint anti-retaliation initiative to protect workers’ rights.

History of the National Labor Relations Board and the NLRA

Created in 1935 with the passage of the NLRA, the NLRB is an independent federal agency. Chiefly, the NLRB protects all employees’ rights, under the NLRA. These include the right to organize and to determine whether to have unions represent them during collective bargaining. In doing so, it ensures employees can work together to improve their wages and working conditions. Additionally, the NLRB prevents private sector employers and unions from discriminating, retaliating, or otherwise instituting unfair labor practices. Generally, the NLRA covers most employees, whether the workplace is unionized or non-unionized. Meanwhile, the NLRB itself has broad jurisdiction, covering the majority of non-government employers. Covered employers include non-profits, employee-owned businesses, labor organizations, and businesses in states with “Right to Work” laws. Among these, NLRB’s statutory jurisdiction covers private-sector employers whose interstate commerce activities exceed specified minimum levels, variable by business type.

What Are Captive Audience Meetings?

Captive audience meetings have been legal since the 1940s. Notably, employees must attend these mandatory meetings, which occur during regular paid work hours. Employers hold such mandatory meetings in order to communicate various statutory labor rights. Namely, these include employees’ right to not form or participate in unions.

The Memo on Captive Audience Meetings

According to the memo, the NLRA protects employees’ right to either listen to or refrain from listening to employers as they speak on their rights to either unionize or not participate in collective bargaining to improve their workplace. As such, forcing employees to attend these meetings under threat of discipline violates that right. The memo argues that the mandatory nature of these meetings can discourage employees from exercising their right to refrain from listening to such speech. Therefore, it is inconsistent with the rights guaranteed under the NLRA. Furthermore, Abruzzo stated, “This license to coerce is an anomaly in labor law, inconsistent with the [NLRA’s] protection of employees’ free choice. It is based on a fundamental misunderstanding of employers’ speech rights.” Accordingly, Abruzzo’s memo to the NLRB aims to revisit precedent which formerly allowed captive audience meetings. In the end, the memo proposes that the NLRB should require employers to reinforce that attendance at captive audience meetings is, in fact, truly voluntary.