Captive audience meeting

Last updated

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]

Contents

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

Related Research Articles

<span class="mw-page-title-main">National Labor Relations Act of 1935</span> 1935 U.S. federal labor law

The National Labor Relations Act of 1935, also known as the Wagner Act, is a foundational statute of United States labor law that guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, and take collective action such as strikes. Central to the act was a ban on company unions. The act was written by Senator Robert F. Wagner, passed by the 74th United States Congress, and signed into law by President Franklin D. Roosevelt.

<span class="mw-page-title-main">National Labor Relations Board</span> U.S. federal government agency

The National Labor Relations Board (NLRB) is an independent agency of the federal government of the United States that enforces U.S. labor law in relation to collective bargaining and unfair labor practices. Under the National Labor Relations Act of 1935, the NLRB has the authority to supervise elections for labor union representation and to investigate and remedy unfair labor practices. Unfair labor practices may involve union-related situations or instances of protected concerted activity.

<span class="mw-page-title-main">Union busting</span> Efforts to prevent or hinder unionization among workers

Union busting is a range of activities undertaken to disrupt or weaken the power of trade unions or their attempts to grow their membership in a workplace.

Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527 (1992), is a US labor law case of the Supreme Court of the United States on union rights and private property rights. It forbids nonemployee union organizers from soliciting support on private property unless no reasonable alternatives exist.

Card check, also called majority sign-up, is a method for employees to organize into a labor union in which a majority of employees in a bargaining unit sign authorization forms, or "cards", stating they wish to be represented by the union. Since the National Labor Relations Act (NLRA) became law in 1935, card check has been an alternative to the National Labor Relations Board's (NLRB) election process. Card check and election are both overseen by the National Labor Relations Board. The difference is that with card sign-up, employees sign authorization cards stating they want a union, the cards are submitted to the NLRB and if more than 50% of the employees submitted cards, the NLRB requires the employer to recognize the union. The NLRA election process is an additional step with the NLRB conducting a secret ballot election after authorization cards are submitted. In both cases the employer never sees the authorization cards or any information that would disclose how individual employees voted.

The Employee Free Choice Act is the name for several legislative bills on US labor law which have been proposed and sometimes introduced into one or both chambers of the U.S. Congress.

Protected concerted activity is a term of art in United States labor law that refers to the actions employees take to improve their working conditions that are protected from employer interference or retaliation under the National Labor Relations Act. These rights are found in "Section 7" of the National Labor Relations Act, and are often referred to as Section 7 protections.

<i>The Blue Eagle at Work</i> 2005 legal treatise written by Charles J. Morris

The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace is a legal treatise written by Charles J. Morris which analyzes collective bargaining under the National Labor Relations Act (NLRA), the federal statute governing most private sector labor relations in the United States. Published in 2005 by Cornell University Press, the text claims that the NLRA guarantees that employees under that Act have the right to bargain collectively through minority unions—but only on a members-only basis—in workplaces where there is not an established majority union, notwithstanding that the present practice and general understanding of the law is that only majority-union employees are entitled to engage in collective bargaining on an exclusivity basis. Contracts resulting from such minority-union bargaining would apply to union members only, not to other employees.

NLRB v. Truck Drivers Local 449 , 353 U.S. 87 (1957), is an 8-0 decision by the Supreme Court of the United States in which the Court held that a temporary lockout by a multi-employer bargaining group threatened by a whipsaw strike was lawful under the National Labor Relations Act (NLRA), as amended by the Taft-Hartley Act.

NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), is a United States labor law case of the Supreme Court of the United States which held that workers who strike remain employees for the purposes of the National Labor Relations Act (NLRA). The Court granted the relief sought by the National Labor Relations Board, which sought to have the workers reinstated by the employer. However, the decision is much better known today for its obiter dicta in which the Court said that an employer may hire strikebreakers and is not bound to discharge any of them if or when the strike ends.

Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), is a United States labor law decision in which the Supreme Court of the United States denied an award of back pay to an undocumented worker, José Castro, who had been laid off for participating in a union organizing campaign at Hoffman Plastics Compounds plant, along with several other employees. The case was originally filed against Hoffman by Dionisio Gonzalez, an organizer with the United Steelworkers.

<span class="mw-page-title-main">History of union busting in the United States</span> Aspect of U.S. history

The history of union busting in the United States dates back to the Industrial Revolution in the 19th century. The Industrial Revolution produced a rapid expansion in factories and manufacturing capabilities. As workers moved from farms to factories, mines and other hard labor, they faced harsh working conditions such as long hours, low pay and health risks. Children and women worked in factories and generally received lower pay than men. The government did little to limit these conditions. Labor movements in the industrialized world developed and lobbied for better rights and safer conditions. Shaped by wars, depressions, government policies, judicial rulings, and global competition, the early years of the battleground between unions and management were adversarial and often identified with aggressive hostility. Contemporary opposition to trade unions known as union busting started in the 1940s, and continues to present challenges to the labor movement. Union busting is a term used by labor organizations and trade unions to describe the activities that may be undertaken by employers, their proxies, workers and in certain instances states and governments usually triggered by events such as picketing, card check, worker organizing, and strike actions. Labor legislation has changed the nature of union busting, as well as the organizing tactics that labor organizations commonly use.

Paul M. Herzog was an American lawyer, educator, civil servant, and university administrator. He was chairman of the United States National Labor Relations Board from 1945 to 1953.

Communications Workers of America v. Beck, 487 U.S. 735 (1988), is a decision by the United States Supreme Court which held that, in a union security agreement, unions are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining representative. The rights identified by the Court in Communications Workers of America v. Beck have since come to be known as "Beck rights", and defining what Beck rights are and how a union must fulfill its duties regarding them is an active area of modern United States labor law.

<span class="mw-page-title-main">J. Warren Madden</span> American judge

Joseph Warren Madden was an American lawyer, judge, civil servant, and educator. He served as a judge of the United States Court of Claims and was the first Chairman of the National Labor Relations Board. He received the Medal of Freedom in 1947.

NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292 (1939), is a US labor law case where the US Supreme Court held 5-to-2 that the National Labor Relations Act required decisions of the National Labor Relations Board (Board) to be based on substantial evidence. The Supreme Court overturned a ruling of the Board for not being based on substantial evidence. The Court also held that only the representative of the workers could issue collective bargaining proposals under the law, and that proposals transmitted by a third party did not trigger the Act's protections or duties.

National Labor Relations Board v. Sands Manufacturing Co., 306 U.S. 332 (1939), is United States labor law case, decided by a majority of 5 to 2 by the Supreme Court of the United States, which overturned a decision by the National Labor Relations Board because it was not supported by substantial evidence. The Court defined collective bargaining under the National Labor Relations Act to mean that proposals and responses to proposals were pending, and that future meetings were being planned. Absent such conditions, bargaining was not occurring. The Court also held that an employer did not violate the Act if it chose to deal with the employees on an individual basis.

Guy Otto Farmer was an American lawyer and civil servant. He was Chairman of the United States National Labor Relations Board from July 1953 to August 1955. After leaving government service, he represented the Bituminous Coal Operators Association, the collective bargaining arm of the bituminous coal mining industry in the United States.

Emporium Capwell v. Western Addition, 420 U.S. 50 (1975), was a United States Supreme Court case. The court reversed and remanded the Court of Appeals ruling. The Supreme Court ruled on the basis of the Civil Rights Act of 1964 and the National Labor Relations Act of 1935 (NLRA).

<span class="mw-page-title-main">Jennifer Abruzzo</span> American government official

Jennifer Ann Abruzzo is an American attorney and government official who serves as General Counsel at the National Labor Relations Board (NLRB). She previously was Special Counsel for Strategic Initiatives for Communications Workers of America (CWA), the largest media and communications union in the United States. She had previously worked for the NLRB for over 20 years in a number of positions, including Deputy General Counsel and Acting General Counsel.

References

  1. 1 2 3 4 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. 1 2 Gordon, Aaron (April 7, 2022). "NLRB Lawyer Wants to Ban Companies' Favorite Union-Busting Technique". Vice . Retrieved June 23, 2022.
  5. 1 2 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. 1 2 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. 1 2 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. 1 2 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. 1 2 3 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 , 77577 (NLRB1948).
  34. 1 2 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.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.