D.C. Circuit to NLRB: Are You Sure About That Captive Audience Ban?

by | Mar 26, 2024 | Courts, Labor Relations Ink, Labor Relations Insight, Legal, NLRB, Politics

Nearly two years ago, General Counsel Abruzzo took aim at so-called “captive audience” meetings. She asked the NLRB to prohibit employers from requiring employees to listen to employer speech about unions, whether in groups or one-on-one. While the NLRB has so far declined to weigh in, it’s only a matter of time.

However, a recent under-the-radar decision by the D.C. Circuit makes clear that NLRB restrictions on employer meetings and speech about unions will get serious scrutiny. This is the most important Circuit Court in the US, the Court in which the NLRB resides. The decision should also be a wake-up call to the employers. Avoiding mandatory meetings just because the General Counsel doesn’t like them is a blunder.

The Proposed Ban on Mandatory Meetings

The General Counsel has asked the Board to ban mandatory meetings during union organizing campaigns in several cases, most notably in cases involving Starbucks. She argues that the power dynamic between companies and employees means that mandatory meetings are inherently coercive. She further claims that employees have a protected right to leave these meetings, a twisted reading of the Section 7, “right to refrain” (which plainly refers to the right to refrain from concerted activity, not employer meetings). Therefore, she argues that making these meetings mandatory is a per se violation of the statute.

There are numerous problems with this strained legal logic, which hopefully explains why the NLRB has thus far avoided going along with the General Counsel’s argument. In fact, they specifically declined to address the issue in a recent Starbucks decision (372 NLRB No. 159, November 28, 2023). But that hasn’t stopped the General Counsel from pushing the Board to adopt her interpretation or demanding that Regional Directors continue issuing complaints whenever a union complains about employer meetings during an organizing campaign.

Unfortunately, the mere threat of an unfair labor practice (ULP) complaint—especially on the heels of the recent Cemex decision, which promises a bargaining order for even a single ULP during an organizing campaign—has already achieved the General Counsel’s primary goal: to muzzle employer speech during campaigns. Many employers decide to make meetings voluntary and sometimes forego meetings altogether when employees put under peer pressure to avoid the meetings by union organizers don’t show up.

Legal and Practical Challenges

The Act explicitly protects the employer’s right to express views on unionization under Section 8(c) of the NLRA and the First Amendment’s prohibition against government regulation of political speech. This complicates the General Counsel’s push for a ban. The statute balances the employer’s protected right to express its opposition to unionization against the possibility that such speech could potentially coerce or intimidate employees. That’s why the Act makes clear that threats or coercive speech crosses the line and violates the statute.

While they chose not to rule on the Starbucks case issue, the NLRB will likely consider the matter soon. In the meantime, several states have enacted their own bans on captive audience meetings, including Oregon, Connecticut, Maine, Minnesota, and New York. Similar restrictions are pending in California, Colorado, Illinois, Maryland, Massachusetts, and Vermont.

As a practical matter, these restrictions, both real and threatened, force employers to make the Hobson’s choice of either exercising their protected right to express their opinion about unions or sitting on the sidelines during an organizing drive (which is the whole point of these government threats). If they choose to express their opinion about unions, these employers are buying a legal battle to defend their free speech rights.

Way too many companies are choosing to avoid the expense and headache of the legal battle. Some make meetings voluntary, although it is very unclear exactly how “voluntary” a meeting must be to satisfy these regulators. Is it good enough to simply let people leave if they ask? Do you have to formally announce that the meeting isn’t mandatory? Do employees have to formally acknowledge that they understand they can leave? It is a completely gray area. That’s why many companies take the extremely conservative route and avoid meetings altogether.

The Importance of Employer Free Speech

While silencing employers makes union bosses giddy (not to mention the government officials they help elect), it’s terrible for American workers. Hardly anyone belongs to a union today. Very few people have any actual experience of what it’s like to belong to a union. Instead, the average worker considering a union must rely on promises from paid union organizers, which often range from puffery to outright lies about what unions actually deliver. Even if they seek information from sources outside the paid salespeople, most of the information in the media and social media are myths and half-truths (from other people with no actual experience).

The bottom line is that other than employers, nobody has any interest in educating workers about the actual realities of collective bargaining or belonging to a union. And those realities are a far cry from what the average voter in a union election thinks will happen after they vote in a union. These employees deserve the opportunity to at least consider the potential downsides of voting in a union.

While most employers’ views are negative toward unions, management is expressly prohibited from saying anything about unionization that is a threat or in any way intended to coerce or intimidate workers from exercising their right to join a union. Working people in America are fully capable of listening to both sides of this issue and deciding for themselves what is best for them and their families. And setting up the system in a way that guarantees they will go into the election blind to the realities of collective bargaining and union membership is terrible for workers. But here we are.

The D.C. Circuit’s Defense of Employer Free Speech

On March 1st, in the little-publicized case NCRNC, LLC v. 1199 SEIU (D.C. Cir. No. 22-1332, March 1, 2024), the D.C. Circuit gave a full-throated defense of employer free speech that should give employers a lot more confidence. In this case, the Circuit reversed an NLRB ruling that found one-on-one communication between a supervisor and an employee was inherently coercive. In its reversal the Circuit decisively affirmed that non-coercive persuasion by managers is protected speech under the NLRA.

In this case, supervisors were told to distribute anti-union flyers to employees and then to gauge employee reaction to the flyer. The NLRB ruled below that this was coercive and a ULP. However, the D.C. Circuit reversed, stating that these interactions are protected under section 8(c) of the NLRA, provided they do not involve coercion or threats.

There are several notable facts in this case that should give the NLRB pause as it considers the General Counsel’s plea to outlaw mandatory meetings. First, there was no suggestion that the one-on-one meetings in this case were voluntary, yet the D.C. Circuit saw no problem with them. The Court noted, “one-on-one persuasion efforts are protected by Section 8(c) in the absence of any coercion or threats” (emphasis mine).

The Court further stated, “when a manager shares a flyer with an employee and engages in non-coercive ‘one-on-one persuasion,’ that is protected speech under the NLRA” (emphasis mine). Nor did the Board proffer any evidence that the company’s efforts at one-on-one persuasion had a “reasonable tendency” to “intimidate” employees.” Clearly, the D.C. Circuit believes that managers meeting with employees to discuss unions, absent any other evidence of intimidation or threat, falls squarely within the 8(c) free speech protection.

It is very hard to imagine that the same Court that issued this defense of employer speech will go along with the idea that merely requiring employees to listen to that speech is inherently coercive. In fact, the Court went further, saying, “Employers may investigate employees’ views on unionization so long as employers use non-coercive means to discover those views. [R]equiring supervisors to report what they see and hear in the normal course of their day … is not illegal.”. In sum, Northeast’s distribution of flyers and one-on-one persuasion efforts were protected by Section 8(c)” (emphasis mine).

Looking Ahead: The Legal Landscape and Implications for Employers

NCRNC is a shot across the bow to the NLRB and General Counsel. A captive audience ban is a blanket, prior restraint on any speech that union bosses and their political allies don’t like. It’s antithetical to the speech protections on which the US was founded, and the NLRA explicitly protects. The D.C. Circuit will clearly have no patience with attempts to gag order employers or interfere with their right to discuss unions with their employees without direct evidence of coercion.

This decision reinforces the protections employers enjoy to express their stance on unions. It suggests that mandatory meetings without inherent intimidation or threats will not be deemed unlawful. The employer community must embrace the fact that this important Circuit Court is ready to protect the right of employers to meet with their employees—whether those meetings are required or not—and discuss their position on unions.

 The NLRB has not banned captive audience meetings. At this point, why would they? Right now, they have the best of both worlds: employers are running scared, and they don’t have to risk a reversal, which would clearly protect mandatory meetings in the future. The D.C. Circuit’s ruling makes clear they will get a swift kick in the teeth when that decision is appealed.

Concluding Thoughts

NCRNC is a wake-up call for employers. Running scared from the threat of a ULP robs employees of important information they need to make an informed decision about unions. It risks poisoning the labor relations environment if a union is voted in since the newly represented employees will be frustrated and disappointed thinking all the promises made were going to quickly come true. And it gives unions exactly what they want: the chance to grab dues from a bunch of ill-informed new members.

The wake-up call arrived. It’s time to wake up.

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