Key Takeaways:
- As of November 13, 2024, employers cannot compel employees to attend meetings on employer premises, during the workday, to communicate the employer's viewpoints on organizing.
- To now hold such informational meetings, employers must inform employees—in advance of the meetings—that: the employer intends to communicate their views on unionizing; attendance is not mandatory; there will be no consequences for failing to attend; and attendance will not be tracked.
- Employers who held captive-audience meetings before the new rule are not at risk. It applies prospectively, not retroactively.
On November 13, 2024, the National Labor Relations Board ("Board") overturned Babcock & Wilcox, 77 NLRB 577 (1948), which had—for over 75 years—protected employers' right to hold mandatory meetings on their premises to express their views regarding union organizing. The so-called captive-audience meetings were held during paid working time, and employees could be compelled to attend, on pain of discipline or discharge. At the meetings, the employer was free to express its views on organizing, and free to prohibit any employee speech to the contrary. Employers were permitted to notify employees of the obligation to attend; escort them to the meeting; and exclude or ban from attending any employees who might express opposing views.
For nearly eight decades, captive-audience meetings have been a common feature of organizing campaigns. There was no limitation on the permissible frequency or duration of the meetings; the only restriction was that neither the employer nor the union could make speeches within 24 hours of an election.
In its decision on November 13, 2024, the Board reasoned that the Babcock ruling lacked any justification in the National Labor Relations Act ("NLRA"), the Labor Management Relations Act ("LMRA"), legislative history, or otherwise. Although it was decided in 1948, on the heels of the 1947 enactment of the LMRA, otherwise known as the Taft-Hartley Act, Babcock failed to accurately interpret the purpose of the Taft-Hartley amendments to the NLRA.
The legislative intent behind the Taft-Hartley Act was to recognize that, in addition to the right to organize, employees also had the right to refrain from engaging in organizing activities. It also added protections for employers' free-speech rights. But the protections were not immunizations from liability for coercive conduct. The goal was to prohibit the use of employers' anti-union speech during organizing campaigns from being used against them as evidence of anti-union motive in subsequent unfair-labor-practice claims.
While the Board recognized that employers continue to have the right to freely express their views on unionizing, it held that mandatory meetings interfered with employees' rights to choose whether to engage or not with the organizing process. The mandatory nature of the meetings also implied that the employee lacked the freedom to decide whether or not to organize, just like they lacked the freedom to decide not to attend the meeting.
Going forward, if an employer plans to hold a meeting on their premises during the workday to communicate their views regarding unionizing, they must, reasonably in advance of such meetings, inform their employees that: (1) they intend to express their views regarding unionization; (2) attendance at the meeting is not mandatory; (3) there will be no consequences for failing to attend; and (4) attendance will not be tracked. And, of course, the employer must follow through on those promises.
Although its usual practice is to apply new policies and standards retroactively, the Board reasoned that, because captive-audience meetings have been lawful for nearly eight decades, the new rule applies only prospectively.
This change of law had been a priority for President Biden's General Counsel. President-elect Trump has yet to nominate a General Counsel, but that person will almost certainly disagree with the decision and may not enforce it, and a future Board will likely overturn it. We will keep you posted on further developments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
