Captive Audience Meetings: The Right Not to Attend

Abstract

For nearly seventy years, the National Labor Relations Board (NLRB or "Board") and various courts have interpreted the National Labor Relations Act (NLRA or "Act") as permitting employers to give captive audience meetings during labor organizational campaigns in the private-sector. Employees, in the midst of deciding whether to join a union, must attend such meetings where "labor relations consultants" usually dictate management's views about the evils of unionism. These meeting occur during working hours, when management is best situated to shackle employees through the exertion of its economic authority and to play on fears of job loss if employees vote in favor of unionization. During these meetings, employees are not permitted to question the employer representative and employers are not obligated to provide the union access to the workplace to present opposing views. While in a formal sense employees are free to leave these meetings, they do so in reality at the peril of losing their jobs. Put simply, rightfully motivated by the necessity of continued employment for basic economic survival, employees will not miss the threatening subtexts of carefully crafted message. Such messages, while free from overt statutorily prohibited threats of reprisal or promise of benefits, will nonetheless convey the detrimental effects of failing to agree with the employer's anti-union stance. Even though eventual voting on unionization will be completed by secret ballot, most employees by that point seem to lose all interest in supporting a cause that will surely draw their employer's ire. Thus, the central argument of this Chapter is that captive audience meetings are not about employer speech rights at all, but rather amount to coercive conduct against employees in derogation of employees' right to self-organization under the NLRA. Of course, employers are free to express or discuss anti-union views with their employees. However, doing so through the mechanism of forced listening, implied coercion, and fear is conduct that should be regulated under the NLRA. Utilizing the conduct/speech distinction in labor picketing law and sexual harassment law, this Chapter will establish the similar conduct-like nature of captive audience meetings and contend that the Board should make employer captive audience meetings a per se violation of Section 8(a)(1) of the NLRA, as it is conduct that directly interferes with, restrains and/or intimidates employees in Section 7 organizational rights to decide whether they wish to join a union.