On Nov. 13, the National Labor Relations Board ruled that an employer violates the National Labor Relations Act by requiring employees to attend mandatory “captive audience” meetings, in which the employer expresses its views on unionization and its potential impact. The decision undoes 75 years of precedent, violating employer free speech rights and depriving workers of vital information.

Immediately following the NLRB decision, Kristen Swearingen, ABC vice president, legislation & political affairs, and chair of the Coalition for a Democratic Workplace, issued the following statement: 

“In the last week, NLRB Chair Lauren McFerran has issued two decisions aimed at silencing debate on the merits of a particular union or unions generally. McFerran’s actions are part of her and other Democratic Board members’ ongoing effort to cancel employer speech. The Board decisions will make it harder for employees to hear the pros and cons of unionization before casting their secret ballot vote for or against union representation. The Supreme Court, Congress, and the Board itself have all recognized and protected employers’ free speech rights and their ability to discuss unionization with their employees. Nonetheless, the Board is taking it upon itself to muzzle employers, leaving workers unable to obtain a full picture of what unionization could mean for them. As dissenting member Kaplan explained, this rule will crush the ‘uninhibited, robust, and wide-open debate in labor disputes’ that Congress so clearly intended and the courts have promoted.

“Moreover, the Board chose to abandon this precedent, which has stood for more than 75 years, without first seeking input from the public. The impact of this decision will be immense, and the Board’s failure to obtain public comment is shocking and inexcusable.”

The NLRB’s news release discussed the Board’s reasoning for why captive audience meetings interfere with employees’ rights under the NLRA:                       

“First, such meetings interfere with an employee’s right under Section 7 of the Act to freely decide whether, when, and how to participate in a debate concerning union representation, or refrain from doing so. Second, captive audience meetings provide a mechanism for an employer to observe and surveil employees as it addresses the exercise of employees’ Section 7 rights.  Finally, an employer’s ability to compel attendance at such meetings on pain of discipline or discharge lends a coercive character to the message regarding unionization that employees are forced to receive. The employer’s ability to require attendance at such meetings demonstrates the employer’s economic power over its employees and reasonably tends to inhibit them from acting freely in exercising their rights.”

The Board made clear that this change in the governing standard will be applied prospectively only.

This decision will chill employer speech on unionization, leaving workers without a full understanding of how unionization could impact them. While the NLRB under President Trump may work to undo this decision, it can only do so when it obtains control over the Board and its agenda. The Board currently has a 3-1 Democratic majority. President Biden is attempting to extend NLRB Chair McFerran’s tenure on the Board by nominating her for another five-year term before her current term expires in December 2024. Disappointingly, Democratic senators on the U.S. Senate Health, Education, Labor and Pensions Committee forced McFerran’s nomination through the committee on Aug. 1 without a hearing or the support of any Republican senators on the committee. If McFerran is successfully confirmed by the Senate, there will be a Democratic majority on the Board through August 2026. The Senate may vote on McFerran’s renomination before the 118th Congress ends in January 2025, which ABC will continue to oppose.