Anti-Union Captive Audience Meetings Are Risky With Law in Flux

A company’s use of “captive audience” meetings to counter union organizing drives has become a more complicated endeavor now that a handful of states have enacted restrictions and a national-level ban is potentially on the way.

New York is the largest of five states that have passed measures barring employers from holding mandatory meetings to talk about religious and political issues, including unionization. While the Empire State’s measure awaits the governor’s signature, laws are already on the books in Connecticut, Maine, Minnesota, and Oregon.

Meanwhile, National Labor Relations Board General Counsel Jennifer Abruzzo has said that such meetings are inherently coercive and violate federal labor law. Although the NLRB hasn’t ruled on Abruzzo’s theory, the agency’s legal arm already is going after companies for holding them, and has fully briefed a case on the issue that’s pending before the board—signaling a decision could come soon.

But despite that momentum towards greater restrictions, the law governing captive audience meetings is fluid and presents uncertainty for employers.

The US Chamber of Commerce’s lawsuit challenging Connecticut’s law cleared an early hurdle and is moving forward on the merits, suggesting state-level restrictions might not last. And it remains to be seen whether the Biden NLRB will overturn the 75-year-old precedent that allows employers to require workers to attend their anti-union meetings.

“As long as clients understand the risks, then it’s ultimately a business decision for the client to make,” said Daniel Schudroff, a management-side attorney at Jackson Lewis PC who’s litigating the issue at the NLRB.

Some companies will be willing to hazard facing a lawsuit or an NLRB complaint in order to use captive audience meetings to resist union organizing campaigns, while others won’t want to take that gamble or deviate from the letter of the law, he said.

“There’s going to be a whole spectrum,” Schudroff said.

Tool or Weapon?

The NLRB initially outlawed captive audience meetings in 1946, finding that a company violates the National Labor Relations Act by using its economic power to force its speech on unwilling listeners. But Congress added employer speech protections to the NLRA via the Taft-Hartley Act in 1947, and a year later the board ruled that mandatory anti-union meetings pass legal muster.

Management-side attorneys say captive audience meetings are a critical tool for companies to voice their views about unions to their workforce during paid time.

Making them mandatory is critical to guarantee that workers attend the gatherings, said Rebecca Leaf, a former NLRB attorney who practices at management-side firm Miles & Stockbridge. An organizing campaign signals that the employer-employee relationship has already broken down, she said.

“If given the option, employees are not going to go to those meetings,” Leaf said.

But critics in organized labor and academia say captive audience meetings are mainly opportunities for employers to bully workers and remind them who’s in charge.

“Of course employers like captive audience meetings because it’s a very effective psychological weapon,” said Matthew Finkin, a law professor at the University of Illinois. “The coercive pressure they apply on workers, especially if no questions are allowed, manifests employer power.”

Rise of State Laws

The spread of state laws restricting captive audience meetings is a recent phenomenon. Connecticut passed its measure in 2022, and three other states followed this year.

California and Vermont have bills working their way through their legislatures, although the California proposal is limited to agricultural workers.

Similar legislation is likely to fare well in other states that have a robust union presence and Democrats in control of the government, such as Illinois, Washington, Massachusetts, New Jersey, and Maryland, said Michael Lotito, who co-chairs the Workplace Policy Institute at the management-side firm Littler Mendelson PC.

Oregon stands as the old guard, having enacted its captive audience law more than a decade ago.

To deal with that restriction, employers there have added incentives, like free pizza, to encourage worker attendance at non-mandatory meetings, said Richard Alli, a management-side labor lawyer at Bullard Law. Businesses also make their case against unionizing via videos emailed to the workforce, he said.

In addition, there’s been an upswing in the use of “persuaders” in Oregon, Alli said. These non-lawyer consultants—who are often former union organizers—filter through the workplace and have one-on-one conversations with workers about not unionizing, he said.

“Many employers are basically running their campaigns through persuaders rather than upper management,” Alli said.

‘Zero Effect’

At the same time, some union lawyers say the Oregon law hasn’t stopped the mandatory meetings.

“I have seen zero effect,” said Daniel Hutzenbiler with McKanna Bishop Joffe LLP. “I also work in Washington, and it’s basically the same there as it is in Oregon.”

The Oregon Bureau of Labor and Industries lacks the authority to police captive audience meetings, according to agency spokesperson Rachel Mann.

Hutzenbiler said he’s unaware of any lawsuits ever being filed under the statute. The state labor agency’s disavowal of any enforcement authority has, in part, scared off unions from filing lawsuits, he said.

Workers’ lack of knowledge about their own rights also plays a part.

“While it’s true that Oregon workers can refuse to attend meetings about their boss’s views on unionization, it’s a right that many workers aren’t aware of,” said Miles Eshaia, spokesman for United Food and Commercial Workers Union Local 555. “Their boss isn’t likely to inform them.”

Broader Federal Reach

Oregon’s enforcement gaps highlight the more serious potential impact of an NLRB decision outlawing captive audience meetings—not just in terms of its nationwide scope, but also the extent of what would be considered illegal.

The state laws generally prohibit employers from firing, disciplining, or threatening adverse employment actions against workers who refuse to attend meetings on political matters, including unionization. That means an employer could hold a meeting it says is mandatory, and only would face liability if it punishes or threatens objecting employees.

But the NLRB’s top lawyer is advocating for a standard that would make the act of holding a captive audience meeting an unfair labor practice, regardless of whether a worker suffers consequences for resisting.

That difference allows for significantly broader NLRB enforcement.

The Oregon Nurses Association, for example, filed a charge with the board earlier this year over a captive audience meeting at a medical center, rather than suing the company under the state’s law.

“No one refused to attend, so we filed an unfair labor practice charge,” said union spokesperson Kevin Mealy.