Employers, including nonunionized employers, could be found to have committed an unfair labor practice by holding a wide variety of mandatory employee meetings or “cornering” employees “while performing their job duties,” if the National Labor Relations Board adopts changes proposed by NLRB General Counsel Jennifer Abruzzo.
Mandatory meetings involving employees’ protected rights “inherently involve an unlawful threat” of discipline against employees “if they exercise their protected right not to listen to such speech,” GC Abruzzo claims in a new memo(Opens in a new window). Specifically, she urges the Board to establish that any time employees “are forced to convene on paid time” or are “cornered by management while performing their job duties” in relation to their right to protected concerted activity, it is an unfair labor practice.
Not just “captive audience” meetings: Although the Board was expected to take a hard look at what it deems “captive audience meetings” – mandatory meetings held by employers during union election campaigns to urge employees not to unionize – the approach sketched out by Abruzzo here goes well beyond this narrow target. Under Abruzzo’s reasoning, seemingly any employer-held mandatory meeting could be deemed unlawful, as long it touches upon employees’ rights to protected concerted activity. Given that the current Board is expected to take a broad view of what constitutes “protected concerted activity” to include a wide range of employee actions only tangentially related to terms and conditions of employment – social and political protests, for example – it is difficult to imagine any mandatory meeting that would not fall into Abruzzo’s net.
Abruzzo’s approach, if adopted by the Board, would constitute a radical change to federal labor law. Meetings involving diversity and inclusion workplace policies, harassment in the workplace, or even simply conversations between management and an employee regarding an employee’s behavior could potentially become unlawful under Abruzzo’s line of reasoning. Employers would be hamstrung from managing day-to-day operations and enforcing even garden variety workplace protocols, due to a “right to not listen” to employer speech that is not articulated in the National Labor Relations Act and dubiously present in established federal labor law and policy, if at all.
Outlook: Abruzzo’s memo by itself does not itself change federal labor law or policy. That will require a Board decision subject to review by the federal courts. Under NLRB procedures, the General Counsel can change the law by bringing an appropriate case before the Board based on an alleged violation. A case will likely be brought soon, and it remains to be seen whether the pro-union Board will adopt Abruzzo’s recommendations.