Why the NLRB Should Require “Captive Audience” Meetings

by | Apr 28, 2022 | Courts, Labor Relations Insight, NLRB, Union Organizing

(Image Source: More Perfect Union Twitter)

The NLRB General Counsel is on the warpath against so-called “captive audience” meetings (what the rest of the world calls a work meeting). The claim is that employees should not have to listen to an employer speak about unions. This includes not just group meetings but even one-on-one conversations. The NLRA specifically provides the right for an employer to engage in this speech, and that right has been repeatedly upheld by the Supreme Court. Nevertheless, here we are.

There are numerous problems with the General Counsel’s proposed argument, and apparently the strategy is to give the Supreme Court another chance to uphold employer free speech. I’m not going to litigate the case here other than to repeat what the Supreme Court ruled in NLRB v. Gissel Packing: companies have a protected right under the First Amendment, as implemented under Section 8(c) of the Act, to express views and opposition to unionization directly to employees. Even though Gissel ultimately found the employer committed unfair labor practices, it was based on what the employer actually said in the meetings (and elsewhere) not the mere fact that they conducted mandatory meetings.

The Supreme Court, while finding that unfair labor practices occurred during the meetings, did not discuss any concerns with the meetings themselves. They also said employers are free to communicate any “general views about unionism” or any “specific views about a particular union” so long as there is no threat of reprisal or force or promise of benefit.

Another question that has not been raised (but should be) is whether these speeches are political speech, which is granted a higher level of protection than commercial speech. Unions are among the most politically active organizations in the country and are vocally supported by politicians up to and including “the most pro-union President ever.” An important topic in these meetings is the fact that unions often contribute to political causes and politicians that don’t share the views of the employees they represent.

Putting aside the question of whether these meetings are protected, the more important question is why aren’t these meetings required by law? Employees today are voting in unions at a pace not seen in years. But they are also doing it based on a massive amount of misinformation and outright lies. The media (social and otherwise) and armchair “experts” with no actual experience tout all the amazing things unions will do, especially for young workers like the Starbucks partners who have organized in over 250 stores across the country.

When you read why these workers are organizing and what they expect to get during bargaining it makes me sad. Their logic is reasonable enough. Newer workers have experienced the two worst economic crises since the Great Depression. These idealistic and energetic young workers ask how can we make work better, more equitable, and just for everyone? How do we fix an economic system that rewards the top earners while leaving frontline workers struggling to get by? How do we make work meaningful, rewarding, and a place where we can bring our full selves to work? These are all great questions.

The problem is that unions do not provide the answers to these questions. Their claims, to the contrary, are provably false. Many union workers make less than similarly situated non-union ones. That’s before paying union dues, which further expands the gap (and shrinks any advantage unions claim). Much of the critiques of work, while true, are not even required subjects of bargaining and even the ones that are don’t often make it into labor contracts. Most of the time union contracts restrict and take away many of the things younger workers value most, like flexibility and advancement based on skill and performance versus seniority.

The promise that makes me cringe most is “you are the union.” This lie has been swallowed hook, line, and sinker by Starbucks partners (and pretty much everywhere else) and at some point soon, I have a feeling unions are going to regret how unclear the realities of bargaining have been explained. As soon as these new union members actually prepare for bargaining and realize how few of them are at the table, and how little input they actually have in the process, their heads will explode. They’ll be disappointed to find out that they don’t get to express their grievances to “corporate,” but instead to a negotiation expert.

These employees will be really alarmed when they are told by the negotiation experts assigned from their union (not the organizers who sold them a bill of goods) that the first contract is always the hardest and doesn’t include all the stuff they thought they’d be getting. They will be told not to talk at the table because the company will see that as division on the union side and try to take advantage. They’ll learn about non-mandatory subjects of bargaining, which cover many of their most important issues. Finally, they’ll discover that the give and take of bargaining is not an all-win, no-lose situation.

This is why mandatory meetings should be required. Unions have their point of view about all of these subjects and will violently disagree with them. Fine. Unions have more access to employees today than they ever have. Maybe there should be a debate instead of interruptions at home or outside of work. But employees deserve to hear both sides before they make this important decision. They should really understand how the process works, from experts who actually know how it works. They should be pointed to factual information (much of this is available directly from the NLRB and other neutral sources) that discusses the realities of bargaining. If after that discussion employees think this is the best way to fix what they think is wrong at work they should vote for representation, but ONLY after they’ve had that chance.

I know this is all a pipe dream under the current administration. It’s the nature of our system. Instead, we’re probably headed to a massive number of elections stalled by legal appeals where employers are forced to defend their free speech rights. That’s a shame for everyone and does nothing to further the purposes of the Act.

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