A top tactic that employers use to feed workers anti-union propaganda and threats could soon be outlawed, as the National Labor Relations Board’s (NLRB) top legal counsel has released a new memo arguing for a return to a previous version of federal labor laws.
NLRB General Counsel Jennifer Abruzzo wrote in a memo released on Thursday that captive audience meetings “inherently involve an unlawful threat” against employees. She argued that the board should consider captive audience meetings — which she defined as also including coerced one-on-one meetings with managers — illegal under the National Labor Relations Act.
In the memo, Abruzzo explained that while captive anti-union meetings were once illegal under federal labor laws they are now legal. Because of this, they are a very common union-busting practice and have been used against recent organizing efforts by workers at Amazon, Starbucks and other companies.
If the NLRB makes captive anti-union meetings illegal, it will be a majorboon to union organizers. These meetings are extremely effective in intimidating employees against supporting union efforts. A 2009 study by the Economic Policy Institute, (EPI), using data from 1999 through 2003, found that such meetings are incredibly effective. foundEmployers who used captive audience meetings in anti union campaigns only 47 percent of all times won the union’s election. When employers didn’t use them, that rate jumped to 73 percent.
Abruzzo stated that any interpretation of law that allows such meetings is clearly wrong. She wrote that employers are exercising undue control over employees by requiring them to attend meetings that limit their choices and actions at work.
This reasoning can apply to a wide range of meetings, she went on, adding that even when managers aren’t outright telling workers not to unionize, captive meetings can contain “threat[s] that employees will reasonably perceive even if it is not stated explicitly.”
“This license to coerce is an anomaly in labor law, inconsistent with the Act’s protection of employees’ free choice. It is based on a fundamental misunderstanding of employers’ speech rights,” Abruzzo said in a statement.
“I believe that the NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language, and our Congressional mandate,” she continued. “Because of this, I plan to urge the Board to reconsider such precedent and find mandatory meetings of this sort unlawful.”
Labor unions expressed support for Abruzzo’s memo. “The question of whether workers want a union should be the workers’ choice — not the employers’ — free of intimidation and interference. Captive audience meetings make that impossible,” said Stuart Appelbaum, the president of the Retail, Wholesale and Department Store Union.
Although it could be a huge help to many union organizers by banning captive audience meetings, it may not be enough for equal labor laws between employers & unions. A 2019 report from EPI found41.5 percent of employers were found guilty of illegal actions during union campaigns. These included firing, harassing, or surveilling workers.
Employers will often deliberately break labor law by engaging in anti-union campaigns. This is because punishments for violations of labor law are very lax and rarely amount to anything more than a slap on their wrists, especially for large businesses.
Abruzzo hopes that this will also be addressed. Though it’s up to Congress to pass sweeping labor law reforms, Abruzzo wants the labor board to reinstate the useJoy Silk doctrine, which would make it much easier for workers to unite.
Under Joy Silk, employers would have to present legitimate reasons for not recognizing a union’s majority status among employees — meaning that employers would rarely be able to reject union recognition as long as most workers say they want a union.
Employers can refuse to recognize a union at will, forcing workers to vote in a union election. Employers can use this time to lock down meetings or discourage workers from joining unions.