Captive audience meeting

A captive audience meeting is a mandatory meeting during working hours, organized by an employer with the purpose of discouraging employees from organizing or joining a labor union.^[1][2] It is considered a union-busting tactic.^[3][4] Critics allege that captive audience meetings are used to intimidate workers and spread misinformation;^[5][6] employees can be fired for failing to participate in the meeting or for asking questions.^[7] Prior to November 2024, in the United States, the National Labor Relations Act of 1935 (NLRA) broadly permitted captive audience meetings but did not allow them to be held in the final 24 hours prior to a union election.^[1][7][8] Employers defended the practice as protected free speech; critics viewed the practice as an infringement on workers' rights not to listen.^[1][9][10]

Captive audience meetings are held in about 90% of labor elections;^[11] union win rates are inversely correlated with the number of captive audience meetings held.^[1]

In February 2021, the Protecting the Right to Organize Act ("PRO Act") was proposed in the U.S. House of Representatives. Among other things, the PRO Act would have made captive audience meetings illegal as an "unfair labor practice".^[5]

In November 2024, the U.S. National Labor Relations Board (NLRB) issued a decision in Amazon.com Services LLC that mandatory meetings violate the NLRA, but that employer-organized meetings about unionization are permissible with advance notice, provided that attendance is optional, employees will face no adverse consequences for not attending, and no attendance records are kept.^[12]

Legality in the USA

In addition the 2024 NLRB decision, several US states have laws that either ban captive audience meetings outright, or prohibit employers from penalizing workers in any way for skipping such meetings. These include Alaska^[13], California,^[14] Connecticut,^[15] Hawaii,^[16] Illinois,^[17] Maine,^[18] Minnesota,^[19] New York,^[20] Oregon,^[15] Vermont,^[21] and Washington.^[22]

NLRB rulings

J. Warren Madden, the NLRB's first chair had issued rulings which required employers to remain neutral during union organizing campaigns and elections.^[23] The Supreme Court disagreed, however, and said in NLRB v. Virginia Electric & Power Co., 314 US 469 (1941), that employers could express their opinion about unions and union organizing efforts so long as that speech was not coercive.^[24] The NLRB subsequently held employer speech was not coercive unless blatantly so or part of a broad pattern of coercive conduct.^[25]: 104

But captive audience meetings, a majority of the board felt, were different. A captive audience meeting occurs when an employer requires employees to meet on company time and listen to anti-union speech. After NLRB v. Virginia Electric & Power Co., the NLRB continued to issue rulings that held that captive audience meetings were a per se violation of the NLRA.^[26][27][28]

Sections of the Taft–Hartley Act were designed to overturn these rulings. In November 1946, voters elected Republican majorities in the Congressional House and Senate. These Republicans were outraged by the NLRB's captive audience rulings.^[29] When Congress enacted the Taft-Hartley Act in 1947, Section 8(c) specifically allowed captive audience meetings so long as the employer made no threat of reprisal, threat of force, or promised any benefits during the meeting.^[30]

During the tenure of chair Paul M. Herzog, the NLRB nevertheless continued to issue a series of rulings which held that unions should be granted equal time whenever an employer held a captive audience meeting.^{[31][32][25]: 105, 331} In Babcock & Wilcox , 77 NLRB 577 (1948), the Board held that unions were permitted to equal time during captive audience meetings.^[33][34] These rulings became known as the Bonwit Teller doctrine, after the name of the first of the post-Taft-Hartley Act captive audience rulings.

Guy Otto Farmer publicly stated his opposition to the Bonwit Teller rulings during the confirmation process.^[35] In December 1953, Farmer convinced Democratic appointee Ivar Peterson to join Farmer and Rodgers in deciding Livingston Shirt Corp.,^[36] which overturned Bonwit Teller.^[37][38] Although Peterson agreed with the outcome of the decision, his rationale for reaching the verdict was on much narrower legal grounds.^[25]: 106 Farmer did not, however, find the employer's right to hold captive audience meetings absolute. In Peerless Plywood Co.^[39] Farmer, Rodgers, and Peterson agreed that employers may not hold captive audience meetings within 24 hours of a union representation election.^[34]: 137 Two years later, in Economic Machinery Co., Farmer led a unanimous board in holding that one-on-one conversations between the employer and employee about the union is inherently coercive.^[40]

In April 2022, Jennifer Abruzzo, general counsel of the NLRB, issued a memorandum calling for the board to find captive audience meetings unlawful.^[4][41][10]

See also

• History of union busting in the United States

References

1. Masson, Elizabeth J. (2004). "'Captive Audience' Meetings in Union Organizing Campaigns: Free Speech or Unfair Advantage?". Hastings Law Journal. 56 (1): 169. Retrieved June 23, 2022.
2. Secunda, Paul M. (2019). "Captive Audience Meetings". The Cambridge Handbook of U.S. Labor Law for the Twenty-First Century. pp. 245–256. doi:10.1017/9781108610070.026. ISBN 9781108610070. S2CID 210505636. Retrieved June 23, 2022.
3. Dastin, Jeffrey (May 7, 2022). "Amazon's captive staff meetings on unions illegal, labor board official finds". Reuters. Retrieved June 23, 2022.
4. Gordon, Aaron (April 7, 2022). "NLRB Lawyer Wants to Ban Companies' Favorite Union-Busting Technique". Vice. Retrieved June 23, 2022.
5. Kreighbaum, Andrew; Mulvaney, Erin; Wilkins, Emily; Kullgren, Ian (March 9, 2021). "Landmark Labor Law Overhaul Passes House but Senate Fate Unclear". Bloomberg Law. Archived from the original on March 10, 2021. Retrieved June 23, 2022.
6. Schiffer, Zoe; Kelly, Makena (May 11, 2021). "The PRO Act would reshape the tech industry — will it get the chance?". The Verge. Retrieved June 23, 2022.
7. Unfair Advantage: Workers' Freedom of Association in the United States under International Human Rights Standards (PDF). Human Rights Watch. 2000. p. 28. ISBN 1564322513. Retrieved June 23, 2022.
8. "Summary of NLRB Decisions for Week of January 25 - 29, 2016". NLRB.gov. January 29, 2016. Retrieved June 23, 2022.
9. Hartley, Roger C. (2010). "Freedom Not To Listen: a Constitutional Analysis of Compulsory Indoctrination Through Workplace Captive Audience Meetings" (PDF). Berkeley Journal of Employment and Labor Law. 31 (1). doi:10.15779/Z38N05N.
10. Abruzzo, Jennifer (April 7, 2022). "Memorandum GC 22-04". NLRB. Retrieved June 23, 2022.
11. Brenfenbrenner, Kate (May 20, 2009). No Holds Barred: The Intensification of Employer Opposition to Organizing (PDF). Economic Policy Institute (Report). Retrieved June 23, 2022.
12. "Board Rules Captive-Audience Meetings Unlawful". National Labor Relations Board (Press release). November 13, 2024. Retrieved November 22, 2024.
13. ""Captive Audience" Bans: Employers Should Be Aware of This Trend". Foley & Lardner LLP. November 11, 2024. Retrieved November 18, 2024.
14. Hatch, Jenavieve (September 28, 2024). "Gov. Gavin Newsom signs California bill banning 'captive audience,' anti-union work meetings". The Sacramento Bee. Retrieved September 29, 2024.
15. Brown, Andrew (April 21, 2022). "Connecticut Bans Captive Audience Meetings, Following Oregon's 2009 Action". CT Mirror. Retrieved June 23, 2022.
16. Tsipras, Patricia (August 19, 2024). "In Case You Missed It: Hawaii Prohibits Captive Audience Meetings". rubinfortunato.com. Retrieved August 28, 2024.
17. Thomas, James D.; Slowiczek, Elliot R. (August 22, 2024). "New Illinois Law Aims to Curtail Employers' Mandatory, Captive Audience Meetings". Jackson Lewis. Retrieved August 28, 2024.
18. O'Brien, Andy (July 17, 2023). "Gov. Mills Signs Law to Ban Mandatory Anti-Union Captive Audience Meetings". Maine AFL-CIO. Retrieved September 4, 2023.
19. Nesterak, Max (May 17, 2023). "Minnesota lawmakers approve 9 major worker-friendly changes". Minnesota Reformer. Retrieved June 1, 2023.
20. Lee, Brian (September 6, 2023). "Signed Into Law, Measure Shields NY Workers From Punishment for Opting Out of 'Captive Audience' Meetings". Law.com. Retrieved September 7, 2023.
21. "S-0102 As Passed by Both House and Senate Official" (PDF). May 28, 2024. Retrieved May 28, 2024.
22. Deng, Grace (April 3, 2024). "Washington adds worker protection laws, including ban on mandatory anti-union meetings". mltnews.com. Retrieved April 4, 2024.
23. Halpern, Martin (March 21, 2011). "Labor". In Pederson, William D. (ed.). A Companion to Franklin D. Roosevelt. John Wiley & Sons. p. 167. ISBN 9781444395174. Archived from the original on July 8, 2022.
24. Paul, Ellen Frankel; Dickman, Howard (1990). Liberty, Property, and the Future of Constitutional Development. Albany, N.Y.: State University of New York Press. p. 277. ISBN 9780791403044. Archived from the original on June 27, 2022.
25. Gross, James A. (July 14, 2003). Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947-1994. Philadelphia: Temple University Press. ISBN 9781592132256.
26. The rulings were American Tube Bending, 44 NLRB 121 (1942), overturn'd, NLRB v. American Tube Bending Co., 134 F.2d 993 (2d Cir. 1943), cert. den'd. 320 US 708 (1943); and Clark Brothers Co., 70 NLRB 802 (1946).
27. Witney, Fred (1949). Wartime Experiences of the National Labor Relations Board, 1941-1945. Chicago: University of Illinois Press. p. 229.
28. Modern Federal Practice Digest: All Federal Case Law in the Modern Era. Vol. 35. St. Paul, Minn.: West Publishing Co. 1970. p. 84.
29. "NLRB Order Raises 'Free Speech' Issue". The New York Times. April 1, 1947. Retrieved June 27, 2022.
30. Oberer, Walter E.; Hanslowe, Kurt L.; Heinsz, Timothy J. (1994). Cases and Materials on Labor Law: Collective Bargaining in a Free Society. St. Paul, Minn.: West Publishing Co. p. 153.
31. Bonwit Teller, Inc., 96 NLRB 608 (1951), remanded on other grounds, Bonwit Teller, Inc. v. NLRB, 197 F2d 640 (2d Cir., 1952); Biltmore Mfg., 97 NLRB 905 (1951); Higgins, Inc., 100 NLRB 829 (1952); National Screw Mfg. Co. of California, 101 NLRB 1360 (1952); Metropolitan Auto Parts, 102 NLRB 1643 (1953)
32. Pier, Carol (2007). Discounting Rights: Wal-Mart's Violation of US Workers' Right to Freedom of Association. Washington, D.C.: Human Rights Watch. p. 69.
33. Babcock & Wilcox, 77 577 (NLRB 1948).
34. Secunda, Paul M. (Winter 2012). "The Future of NLRB Doctrine on Captive Audience Speeches". Indiana Law Journal. 87 (1): 123, 131. SSRN 1692959. Retrieved June 27, 2022.
35. Loftus, Joseph A. (July 13, 1953). "States' Role Urged in U.S. Labor Cases". New York Times. Retrieved June 22, 2022.
36. Livingston Shirt Corp., 107 NLRB 400 (1953).
37. "N.L.R.B. Is Changing Views on Taft Law". The New York Times. December 27, 1953. Retrieved June 27, 2022.
38. Walker, Norman (December 22, 1953). "Unions Lose Speech Rights On Plant Time". Associated Press.
39. Peerless Plywood Co., 107 NLRB 427 (1953).
40. Economic Machinery Co. (Division of George J. Meyer Manufacturing Co.), 111 NLRB 947 (1955).
41. "NLRB General Counsel Jennifer Abruzzo Issues Memo on Captive Audience and Other Mandatory Meetings". National Labor Relations Board (Press release). April 7, 2022. Retrieved June 23, 2022.