Buckle up, it’s about to get choppy.

Employers sailing in National Labor Relations Board (NLRB or Board) waters have come to expect rough seas. By one estimate, the Board overturned more than 4,500 cumulative years of case law during the eight years of the Obama Administration.

The Trump Board reversed a number of those same legal standards right back. Now comes the Biden Board—the labor board assembled by the self-described “most pro-union administration in American history”—and employers have been bracing for more change.

Last week, the NLRB’s General Counsel, Jennifer Abruzzo, gave clear indication from which direction the next headwinds will come.

On Thursday, April 7, 2022, Ms. Abruzzo issued a memorandum announcing her desire to torpedo another NLRB precedent—this one as longstanding and foundational as they come. Striking at the heart of an employer’s ability to communicate with its own employees, the General Counsel will “urge the Board to reconsider” allowing employers to hold so-called “captive audience” meetings discussing the downsides of union representation. If the General Counsel prevails upon the Board to change the law in this way, she will significantly ease future union organizing efforts; it doesn’t take a campaign analyst to recognize that a union is likely to be more successful in delivering its pitch to employees when contrary opinions are stifled.

Impact on Employee Free Choice

But while the General Counsel’s proposed change would help unions, it will just as surely harm employee free choice. The National Labor Relations Act (NLRA or Act) is based on the premise that employees have the right to form, join, or assist labor unions, as well as the right not to do so. In furtherance of employee rights to elect union representation or not, federal labor law has recognized since its inception the importance of allowing employee access to information that facilitates informed decision making.

Indeed, when the NLRA (the Wagner Act) was signed into law in 1935, it specifically provided that “[t]he expressing of any views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit.” 29 U.S.C. § 158(c). Then, as now, the law’s “free speech” proviso secured the ability of employers to share views on unionization with their employees—even negative views—so long as the expression did not constitute or contain a threat or promised benefit.

Consistent with this statutory language, the Board and courts have held since 1948 that employers do not violate the Act by requiring employees to attend meetings on paid time where the employer discusses or discourages union activity. There are two caveats. First, employers and unions alike are prohibited from making election speeches on company time to massed assemblies of employees within 24 hours of a union representation election (the so-called Peerless Plywood rule, for the 1958 case from which it originates). Second, as noted above, employer presentations at mandatory meetings must be free from threats, promises of benefits, or other coercive conduct.

The General Counsel’s April 7 memorandum declares that the Board and courts have gotten it wrong for 78 years, that requiring attendance at meetings—i.e., “forcing” employees to listen to what their employer thinks about unions—is inherently threatening to them. The memorandum thus takes a dim view of employee sensibilities, presuming they could not possibly be expected to sit through a presentation containing no threats or promises without succumbing to atmospheric coercion. One wonders whether the next General Counsel memorandum will require employers to establish mandatory “equal time” at these meetings for those supporting a union push.

More specifically, the General Counsel will propose that the Board “adopt sensible assurances that an employer must convey to employees in order to make clear that their participation in meetings and discussions concerning union organizing is truly voluntary.”  If adopted, the General Counsel’s proposed assurances would be required whenever such discussions happen while employees are “convene[d] on paid time” or “cornered by management while performing their job duties.”

What Comes Next?

The General Counsel’s memorandum does not have the force of law, yet. For now, it is simply a declaration of one official’s opinion that mandatory employee meetings somehow interfere with employees’ purported rights “not to listen” and constitute “threat[s] that employees will reasonably perceive even if [they are] not stated explicitly.”

But the April 7 memorandum is more than that. The memo is a directive from the NLRB’s chief prosecutor to its regional offices to seek out cases that can serve as the vehicle for overturning precedent that has allowed non-coercive employer speech since the Truman Administration. And given the current composition of the Board, the memorandum should be viewed as a harbinger—and a foreboding one at that, for the significance of the change it portends.

Ironically, Ms. Abruzzo issued her memorandum on mandatory employee meetings the same day the Fifth Circuit Court of Appeals heard oral argument concerning challenges to President Biden’s Inauguration Day firing of Peter Robb, Ms. Abruzzo’s predecessor as General Counsel. It remains to be seen whether Ms. Abruzzo will be successful in her announced intention to remake federal labor law. It similarly remains to be seen whether the federal courts will confirm her authority even to try.