On April 7, 2022, Jennifer Abruzzo, General Counsel of the National Labor Relations Board (“NLRB” or “Board”), issued Memorandum GC 22-04, titled “The Right to Refrain from Captive Audience and other Mandatory Meetings” (“GC Memo”). It is no secret that the General Counsel has been an advocate for policies and practices that would increase union representation and make it easier for unions to gain recognition and win votes on representation. This includes restricting steps employers can take to share their views with employees. Such a step that the GC Memo calls for is a series of restrictions on what have been called “captive audience speeches,” that is, meetings on company time where employers present their views.

The GC Memo explains that the NLRB General Counsel’s Office will now seek to prosecute unfair labor practice charges against an employer that requires employees to hear its position on unionization, be it through meetings in the workplace that employees are required to attend on paid time, or conversations between management representatives and individual employees during the workday. This would represent a significant expansion of long-standing rules that until now have limited employer rights to conduct mandatory meetings during the final 24 hours before employees vote on union representation.

Although a principal target of the GC Memo appears to be group meetings that employers conduct to share their views on unions and representation in the workplace that employees are required to attend on company-paid time, in reality, it actually adopts an even more ambitious position. The fundamental assertion underlying the GC Memo’s position is that in addition to protecting employees’ right to engage or refrain from engaging in protected concerted activity, “the [National Labor Relations] Act protects employees’ right to listen as well as the right to refrain from listening to employer speech concerning the exercise of” the rights established under the Act. In the General Counsel’s view, an employer commits an unfair labor practice if it even seeks to expose employees to the employer’s views on unionization, in a situation where the employee cannot avoid the speech without penalty. Under the GC Memo, this would apply not only to captive audience meetings but also to one-on-one conversations between employees and managers or supervisors where the employee is obligated to remain and listen. It may also apply to signs or multimedia materials displayed in work areas that employees are exposed to while they work.

The position espoused by the GC Memo constitutes a radical break with precedent. The Board has recognized an employer’s right to communicate its views on unionization, including via so-called “captive audience speeches” for well over 60 years. See Peerless Plywood, 107 NLRB 427 (1953). The General Counsel, in this memo, has, however, instructed the agency’s Regional Directors to issue a complaint and allege an unfair labor practice when an employer conducts such meetings unless employees are free to leave and not listen without potential adverse consequences of any type and the employees are made aware of that fact.

However, bear in mind that the GC Memo does not represent a change in the law as such but is merely an announcement that General Counsel Abruzzo will seek to change the law by bringing cases that afford the Board an opportunity to adopt the positions she advocates in the GC Memo. While captive audience meetings may remain lawful, at least for the time being, employers utilizing this method of campaigning and communicating will run the risk of becoming a test case of the General Counsel’s theory. In addition, unions that lose representation in election campaigns will likely latch on to the General Counsel’s new interpretation of the Act as an argument for challenging the results when they lose elections and either seek rerun elections or ask the Board to seek orders requiring employers to recognize and bargain with them if they can demonstrate that they had authorization cards signed by a majority of the employees before they filed for a vote.

While it is likely that even if the Board adopts the positions that the General Counsel advocates in the GC Memo, and it is inevitable that such decisions will be subject to close scrutiny in the courts when employers challenge them, the GC Memo and the positions espoused in it create great uncertainty for employers seeking to communicate their views, as the Act gives them the right to do, while the General Counsel pursues these new interpretations.

Notably, other recent efforts by the Board to curtail employer free speech rights have faced skepticism from federal courts. For example, in its decision in Trinity Servs. Grp., Inc. v. Nat’l Lab. Rels. Bd., 998 F.3d 978, 981 (D.C. Cir. 2021), the U.S. Court of Appeals for the District of Columbia Circuit overturned a Board finding that expressing an opinion blaming the union for workplace issues violated the Act. The panel reversed the Board, upholding the traditional rule that “‘opinions’ containing ‘no threat of reprisal or force or promise of benefit’” do not violate the Act. The Board can expect similar pushback should it seek to curtail an employer’s statutory or constitutional rights to share its opinions with its workforce.