Nearly two years ago, NLRB General Counsel Jennifer Abruzzo expressed her intent to have so-called “captive audience” meetings declared illegal under the NLRA. In doing so, she claimed that workers shouldn’t have to listen to employers talk about unions. Abruzzo called these meetings inherently coercive, with the unfortunate outcome of preventing businesses from countering union misinformation.
In a further wrinkle, several states – Minnesota, New York, Connecticut, Maine, and Oregon – have taken matters into their own hands by banning mandatory meetings. Similar legislation is currently on the table in California, Vermont, Colorado, Maryland, Illinois, Massachusetts, and Washington, which aims to lump unionization into a nebulous gathering of “political matters” that are now off-limits for discussion in such meetings.
As our own Phil Wilson has pointed out, Abruzzo’s quest to shut down NLRA-protected speech has been happening at a time when “unions have more access to employees today than they ever have.” The board has also been doing everything possible to ease the path to unionization while making it harder for employers to counter-organizing tactics.
Of course, the board should want workers to have the full benefit of arguments for and against unionization before being irrevocably bound to membership, but that is not how Biden’s NLRB works. Sadly, the current board does not hesitate to dismiss workers’ decertification petitions after they experience buyer’s remorse and broken union promises.
The quest to ban mandatory meetings also hopes to undo decades of precedent and remove the NLRA-protected rights of employers to discuss unions as long as they do not threaten workers. It’s sobering to see such constraints on employer speech in a world where two realities exist: (1) Union salts are increasingly infiltrating businesses to sell much more than they can and will actually deliver; (2) Workers who are disappointed in unions’ shortcomings are often left with no recourse, not even the ability to oust their third-party representation without NLRB foot-dragging.
It’s no wonder we are seeing a trend of businesses questioning whether the NLRB is constitutional and legal challenges against Abruzzo’s mandatory meeting memo. In September 2023, a Michigan federal judge claimed a lack of jurisdiction to review the ban in a lawsuit brought by a construction trade group, which has since appealed to the Sixth Circuit Court of Appeals.
Employers are likewise challenging the state bans on these mandatory meetings. The Minnesota law against mandatory meetings is the subject of a lawsuit from the Associated Builders and Contractors and NFIB. The U.S. Chamber of Commerce also joined forces with a coalition for a pending federal lawsuit to challenge the Connecticut law.
