In early April 2022, National Labor Relations Board General Counsel Jennifer Abruzzo (GC) issued GC Memorandum 22-04 – a very pro-union directive signaling her intention to seek a ban on employer mandated “captive audience” meetings held during union organizing campaigns.

For over 75 years the National Labor Relations Board (NLRB) has found captive audience meetings to be a lawful exercise of an employer’s free-speech rights (absent other prohibited conduct). The GC’s new memo suggests a violation of the National Labor Relations Act (NLRA) occurs where employees are ‘forced’ to listen to an employer’s free speech about union representation; an alleged violation of an employee’s statutory right to refrain from such activity. The memo also calls into question the validity of an employer’s right to hold similar voluntary meetings wherein employers speak with employees one-on-one or in small groups about unions during working time.  The GC deems such meetings to “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.”

While not yet of legal force, the memo proposes an end, not to employer free speech, but the practice of compelling employees to listen to such speech. An interesting proposition that may not prove feasibly enforceable, or by the GC’s own admission, adoptable. Although the GC’s memo sidesteps formal rule or administrative decision-making processes it does send a clear signal that NLRB regional office enforcement may be just around the corner.

In the interim, employers conducting captured audience meetings or attempting one-on-one discussions with their non-agricultural employees[1] concerning union activity, should take steps to provide clear assurances to employees that attendance/participation at such meetings is completely voluntary.

Members with questions about NLRA guidelines in relation to union activity should contact Western Growers.